One of the issues plaguing lawyers in giving advice to employees whose terms and conditions of employment have been altered is whether the employee should withdraw services and claim constructive dismissal or keep working while looking for new employment.
Case law suggests that if it is not humiliating or embarrassing for a constructively dismissed employee to keep working, he or she should do so while looking for other employment (to mitigate damages). An employee who withdraws services faces the risk of the employer arguing that the employee failed to mitigate damages by, in essence, choosing to become unemployed.
In a recent case (Piron v. Dominion Masonry Ltd.), the British Columbia Court of Appeal held that an employee who withdrew his services over a dispute concerning bonus entitlement was entitled to do so. It rejected the employer’s argument that the withdrawal of services was unwarranted and was, therefore, a failure to mitigate damages.
The evidence supporting the decision to withdraw services were some rather blunt exchanges between the employer and employee.
The case illustrates that humiliation by a contractual change is not an essential element of the decision to withdraw services. Where the relationship is strained by words or conduct, an employee may be justified in withdrawing services.
Alf Kempf is the Chair of Pushor Mitchell’s Employment Law Group. He can be reached at (250)869-1215 or [email protected].
