Oct 7

Morgan v Vitran: Duty to Mitigate


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Morgan v. Vitran Express Canada Inc., 2015 ONCA 293 (CanLII)

Constructive Dismissal and an Employee’s Duty to Mitigate

In Ontario, when an employer makes a substantial change to an employee’s employment without notice, an employee may have a claim for constructive dismissal, meaning that the employer has altered the terms of their employment to the extent that it is deemed to be a termination. This principle also applies wherein an employee is terminated and subsequently offered a return to work, an issue which arose in the Supreme Court case of Evans v. Teamsters Local Union No.31, 2008 SCC 20.

Employment law however is a constantly evolving field. The issue of defining a constructive dismissal and an obligation to accept an offer of reinstatement was revisited in the recent case of Morgan v. Vitran Express Canada Inc., 2015 ONCA 293.

The Facts

Mr. Morgan worked as a Dock Supervisor for his employer, Vitran Express Canada Inc. (“Vitran”) for nearly 25 years. In September 2010, Mr. Morgan’s position was altered from Dock Supervisor to Freight Analyst, a position which was of less importance and was created specifically for Mr. Morgan. In response to what he believed was a unilateral change to his employment, Mr. Morgan brought a claim of constructive dismissal against his employer, and was successful in that the court determined Mr.Morgan had been constructively dismissed and was not obligated to accept the new role. Vitran appealed this decision on the grounds that the court erred in its finding of constructive dismissal, as well as its ruling that Mr.Morgan was not obligated to accept the altered position.

Principles of the Court of Appeal

The Court of Appeal ultimately upheld the trial decision, dismissing Vitran’s appeal. The court agreed with the learned trial judge’s finding that Mr. Morgan’s change in position resulted in a significant loss of supervisory duties and the ability to exercise discretion. In addition, the court agreed with the trial judge that Vitran’s conduct in the altering of Mr. Morgan’s position indicated that it did not want to be bound by the terms of the employment agreement between the two parties.

In addressing an employee’s obligation to accept a reasonable position from their employer, the court ruled that Mr. Morgan was not required to do so, based on the following findings of fact:

i. The work environment at Vitran was unfriendly;
ii. The work Mr. Morgan was offered as a freight analyst was of lesser importance than his job as a dock supervisor;
iii. By accepting the freight analyst position, Mr. Morgan would have suffered a loss of dignity in the eyes of the dock workers he used to supervise. The freight analyst position had not been posted, so other employees would have known it was a position created specifically for Mr. Morgan because of his perceived ineptitude and would have been viewed as a demotion by other employees;
iv. Mr. Morgan had been treated in an unacceptable manner by his employer in the period leading up to his constructive dismissal; and,
v. Mr. Morgan’s personal relationships with his supervisors were acrimonious in the sense that no matter what Morgan did, they continued to criticize him.

Due to the unfriendly work environment and overall breakdown in the working relationship that Mr. Morgan would have enevitably had as a result of Vitran’s actions, the court held that he was not required to accept the position.

While an employer can alter an employee’s essential duties on a reasonable basis, it must provide an employee with sufficient notice or may face a claim of constructive dismissal. At that time, as we can have seen in this case, an employee does not always have a duty to accept the altered position from their employer based on the circumstances around the new position. It is important to contact an employment lawyer in these situations in order to properly assess whether constructive dismissal has occurred.