How Can Companies Avoid Charges Of Constructive Dismissal?


Employers must exercise caution when considering what to do about potentially problematic workers in light of the recent adjudication of several instances involving just cause and constructive dismissals.

For many firms, drafting suitable employment contracts requires considerable study, but one thing is certain: if there are worries about performance, it’s probably a good indicator that something has to change.

“If it’s not working for you, it’s probably not working for [the employee]; whether they recognize it or not, it’s simply not working,” says Shana Wolch, a partner in McCarthy Tétrault’s labor and employment group in Calgary. 

“If you think you’ve tried to make things right, you’re probably doing everybody a better favor by proceeding with [termination], because even if they’re still there, you have to question their level of contentment if your opinion is that it’s completely not working.”

Wolch will participate in an upcoming panel discussion about managing just cause and constructive dismissal with Thomas Duke, partner at Miller Thomson, and Tom Ross, partner at McLennan Ross, and will update employers on new case law in these areas and what it might imply for businesses.