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No Constructive Dismissal Where Employee Agreed to Changed Terms
January 9, 2006

In a recent decision of the British Columbia Court of Appeal, the Court upheld the trial judge’s rejection of the plaintiff employee’s constructive dismissal claim, on the ground that he agreed to the employer’s reduction in his hours.

The 67 year old employee had worked for the defendant and its predecessor for nearly 10 years. When the company’s growing business required additional help, it approached the employee and asked if he would agree to work half time, explaining that this would facilitate the hiring of another full-time employee. The employee initially said “okay”, but after working half time for a month he stopped coming to work and claimed he had been constructively dismissed.

At trial, the BC Supreme Court found that the employer had not forced the reduction in hours on the employee, but had proposed it as an option. It rejected the employee’s claim that he had reserved his decision, as he had answered “okay” after the employer suggested the change.

The trial judge also held there was consideration for the change to the plaintiff’s employment contract, ruling that it is valuable consideration to allow an employee who has passed the normal age of retirement to work part-time.

Balderson v. Marcels Equipment (Vancouver) Ltd., 2005 BCCA 569 .

(Click here for link to Supreme Court Decision)