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BC Court of Appeal Issues Decision Involving the Duty to Accommodate, Constructive Dismissal, and Frustration of an Employment Contract
March 11, 2004

The BC Court of Appeal has issued a decision involving issues of constructive dismissal, the duty to accommodate under the Human Rights Code, and the circumstances that will cause an employment contract to be frustrated.

The plaintiff was a long-service managerial employee who began suffering from depression. The disability prevented her from attending work, and she subsequently went onto long term disability. After two years of LTD, the employee commenced a graduated return to work. She worked from home and was given about 25% of her normal workload (involving non-managerial duties), with the goal of a full return to work in six months. However, the return to full duties did not occur. The employee continued to suffer from depression, and she remained on the partial medical leave long after the six months had passed.

Over time, the work provided by the employer steadily declined. Eventually, the employee requested an early retirement package. The employer replied with a proposal that she work as an independent consultant. Nothing came of either proposal and in the following year the plaintiff commenced an action alleging that she had been constructively dismissed. She argued that the employer had failed to provide her with a minimum of nine hours of work per week in accordance with the graduated return to work program.

The trial judge dismissed the claim for constructive dismissal. At the heart of the plaintiff’s submissions on appeal was the contention that the employer had a duty, under the Human Rights Code and/or her contract of employment, to accommodate her disability, and that its failure to do so amounted to a constructive dismissal.

Unfortunately, the Court of Appeal decision does not deal directly with the issue of whether it is an implied or fundamental term of a contract of employment to comply with the duty to accommodate. However, the Court held that whatever the extent of the duty may be, it does not extend to a contractual obligation to amend a job by deleting a component which is significant both in time and responsibility, such as the managerial duties in this case. Further, the Court upheld the lower court’s conclusion that the contract was frustrated by the employee’s lengthy medical disability.

McAlpine v. Econotech Services Ltd., 2004, BCCA, 111, March 2, 2004