Relocation results in constructive dismissal

Weselan v. Totten Sims Hubicki Associates (1997) Ltd., 2001 CarswellOnt 2868, 16 C.C.E.L. (3d) 184 (Ont. C.A.).

The employee was relocated from Simcoe to St. Catharines at the same salary and duties. The trial judge found that, if the employee had agreed to work in St. Catharines, the working conditions would not be substantially different from those experienced in Simcoe and, therefore, such change would not amount to a constructive dismissal.

The Ontario Court of Appeal disagreed and held that, as the employee would have been required to drive an hour and a half before beginning work and an hour and a half after work (at an annual cost of $34,000), both the working conditions in St. Catharines and the employee’s net remuneration were going to be substantially different.

The appeal court, therefore, set aside the judgment at trial and granted judgment in favour of the employee on his claim for wrongful dismissal and directed a new trial to determine his damages. The employee was also awarded the costs of both the trial and the appeal.

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