Take return-to-work offer or forfeit severance pay, Supreme Court rules
Employees fired from their jobs must be prepared to return to work during their severance period, the Supreme Court of Canada ruled yesterday.
In a 6-1 decision, the majority ruled that a
Mr. Justice Michel Bastarache noted that any reasonable person ought to accept such an offer, "where the salary offered is the same, where the working conditions are not substantially different or the work demeaning, and where the personal relationships involved are not acrimonious."
However, Mr. Evans's lawyer, Eugene Meehan, described yesterday's ruling as "a tectonic turn" in employment law that tips the balance against employees in wrongful-dismissal scenarios.
Mr. Meehan said employers can henceforth fire a worker and "strategically" offer him or her another job a short while later - after the worker has suffered so much humiliation and alienation that returning would be a near impossibility.
"It gives employers a bait-and-switch tactic they didn't have before," Mr. Meehan said. "It is a shift away from previous, pro-plaintiff decisions."
He said an employee who refuses a return-to-work offer of this nature will forfeit his or her right to severance payments.
Mr. Meehan's criticism was backed up by a stinging dissent from Madam Justice Rosalie Abella. She said the majority ruling had the "bizarre" effect of turning a wrongful firing into a lawful dismissal: "The result is, in my view, as unpalatable as it is legally and factually unsustainable."
Judge Abella warned that the majority's approach "has the danger of making routine the requirement to accept re-employment with an employer who has acted wrongfully."
Yesterday's decision will cost Mr. Evans most or all of a 22-month award - representing about $100,000 - he won at trial.
After 23 years in his position, Mr. Evans was fired by a new union executive who ousted the one he had actively supported. Five months afterward, the union demanded that he "return to his employment ... to serve out the balance of his notice period of 24 months."
Mr. Evans was warned that if he did not return he would be terminated without notice.
Still, he refused, saying he had been "treated like a dog" by the new local president, and that the poisonous atmosphere he would inevitably encounter at work would make it impossible for him to function.
At trial, Yukon Supreme Court Judge Leigh Gower found that Mr. Evans had been wrongfully dismissed and was entitled to 22 months notice.
Judge Abella scolded her colleagues yesterday for abandoning a long-standing reality that, only on rare occasions, will an employee who is fired be expected to return to the workplace during his or her severance period.
"This, in my view, is particularly troubling because it disregards the uniqueness of an employment contract as one of personal service," Judge Abella argued. "An employee cannot be forced to work against his or her will."
Judge Abella also accused the majority of launching an unwarranted attack on the original trial judge's conclusions - in direct contradiction of a long line of its own decisions that counsel against overriding trial judges.
"With respect, this flies in the face not only of the law of wrongful dismissal, but of the trial judge's factual findings," she said.
Judge Abella said the trial judge supplied very solid reasons for believing that Mr. Evans was worried about re-entering a poisoned workplace where he would be greeted with hostility
James Morton
Steinberg Morton Hope &
M2N 6P4
416 225 2777
Blog: http://jmortonmusings.blogspot.com/
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