Chapter 15 ▯ Dismissal Without Cause
• Provided that the dismissal does not infringe a statue, and employer may dismiss
such an employee as long as they provide notice or pay in lieu.
Frustration of Contract is the only exception where you don’t need to give notice.
• Floods, fires, explosions prevent the work from being performed.
• CANNOT become frustrated by foreseeable problems
• Further performance is impossible or would be radically different
• In relating to frustration due to physical injury, consider:
o The terms of the contract, including provisions relating to sick pay
o How long the contract was likely to last in the absence of sickness
o The nature of employment
o The nature of the illness or injury
o The employment history
o Less likely to find frustration of contract if employee continues to be
eligible for longterm disability benefits
• Where the contract is oral or does not contain an enforceable termination
How much notice is reasonable? Consider:
• Length of service
• Level of compensation
• Availability of similar employees
• Degree to which employees position was specialized
o An employer is not required to fully compensate an employee for entering
the job market when comparable jobs are difficult to find.
o Reasonable notice is not equivalent to the time it takes to find a new job
o If an employer lures an employee away from a secure position and later
dismisses without cause, may be required to give longer notice.
o Employees who work during notice should be given time to look for a new
job, if not, they will also receive pay in lieu.
• You can offer a lump sum that reflects minimum employment standards and
commonlaw notice requirements.
• Alternate: continue salary and benefits during notice period
• Continue to make benefit payments throughout the statutory notice period. The Duty to Mitigate
• Under the common law the employee must take all reasonable steps to find
comparable alternative employment during the reasonable notice period.
• If employer says they didn’t do this to mitigate, they have the onus of proof to
o There were comparable jobs that were suitable
o And that they did not make reasonable efforts to obtain them
• Expected to looks for and except work only that is comparable to former
• Employers are legally liable for a former employee’s outofpocket job search
• If they cannot find work and they are offered to come back to work temporarily,
they must reasonably accept this offer only if:
o Salary remains the same
o Working conditions are not substantially different
o Relationships are not acrimonious
Constructive Dismissal ▯ allows the employee to resign in response and claim damages
from the employer for pay in lieu of notice.
1. Changes to compensation package
a. Not just big changes, but also a lot of little changes constitute constructive
2. Changes in duties
3. Geographic relocations
4. Changes to hours and scheduling
a. Reduction, or increase
a. Should ensure that the employment agreement gives it the right to lay off
6. Untenable work environment
a. Hostile workplace regardless of the basis for bullying (doesn’t need to be
based on the 14 grounds)
The Duty of a Constructively Dismissed Employee to Mitigate
Must continue to work if:
1. Salary offered in new position is the same as old
2. Working conditions are not substantially different
3. Relevant personal relationships are not acrimonious
An employer should obtain the employees consent and provide necessary consideration
or provide the employee with reasonable notice of the chance and explain the
consequences of rejecting the change.
Reasonable Notice DamagesThe Basic Entitlement • Put them in the same position they would have been in had the employer not
breached the contract by failing to provide reasonable notice.
a. The amount of salary he will lose during the reasonable notice period
b. Includes any increase in salary that would have occurred
c. Includes overtime pay of commission
3. Company vehicle