<i>Carnegie</i> decision overturned

Carnegie v. Liberty Health, 2003 Carswell Ont 4004, 29 C.C.E.L. (3d) 235 (Ont. Div. Ct.)

The Ontario Superior Court of Justice has overturned a ruling which awarded Barbara Carnegie $20,668 for having been constructively dismissed (as reported in the March 3, 2004, issue of CELT on page 3189).

Carnegie had risen steadily up the corporate ladder. In fall 2000 the company altered its corporate sales structure and Carnegie and Marilee Mark applied for the new position. Mark was the successful candidate.

Carnegie was offered three choices, one of which was to continue in her present job, reporting to Mark. Carnegie declined that choice and eventually sought damages. The court hearing her claim decided the transfer of her responsibilities to the position won by Mark amounted to a demotion, and was thus constructive dismissal entitling Carnegie to damages. That decision was appealed.

In allowing the appeal, the court cited Smith v. Viking Helicopter Ltd. on constructive dismissal. The test is an objective one: An employer must be responsible for something which creates a fundamental change in employment; and a decision to change various aspects of conducting its business, or to move to another place, is not necessarily a fundamental breach. In this case, the court ruled, the trial judge had made an identifiable error when he misconstrued that Carnegie having to report to Mark was a transfer of many of Carnegie’s duties to Mark.

Altered reporting procedures does not amount to constructive dismissal, and as such the finding of wrongful dismissal was unreasonable, ruled the court. Carnegie’s original action was therefore dismissed.

For an in-depth look at whether someone else’s promotion constitutes constructive dismissal, check out the related article link below.

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