Legal News

Leave option not constructive dismissal BCCA rules
February 11, 2005

The British Columbia Court of Appeal recently overturned a BC Supreme Court judgment awarding a plaintiff over $60,000 in damages for wrongful dismissal.

When the plaintiff, a time-share salesperson, was found to be under-performing, the employer offered her a choice between two options: a warning letter indicating she would be fired if she did not increase her sales within three weeks or a three and one half month leave of absence. The leave was intended to offset a slow sales period, allowing the employee to return when sales activity picked up. The plaintiff chose the leave of absence. Shortly thereafter, she commenced an action for wrongful dismissal, alleging she had been constructively dismissed.

At trial, the judge found in the plaintiff’s favour, observing that there was no explicit term in the employment contract authorizing the employer to temporarily lay off an employee. The judge concluded that the alternative choice offered the plaintiff was tantamount to dismissal.

The Court of Appeal disagreed. The Court found that the employer had properly set out its disciplinary measures in its sales handbook which formed part of the employment contract. The handbook included a mechanism for allowing employees to challenge disciplinary action, which the plaintiff had not utilized.

Further, the Court found that the leave was an optional remedial measure offered to valued long term employees to assist in overcoming poor sales performance during slow sales periods. The Court observed that the good faith offer of a leave could not be construed as constructive dismissal since it was an alternative to the employer’s progressive discipline policy as set out in the handbook. Moreover, the plaintiff was not required to accept the leave. Therefore, neither option could reasonably amount to a repudiation of the employment contract by the employer.

The Court concluded that the plaintiff had voluntarily left her employment, and dismissed the action.

Sinclaire v. Intrawest Resort Ownership Corporation, 2005 BCCA 10, January 11, 2005