Constructive Dismissal

Moore v. Apollo Health & Beauty Care, 2017 ONCA 383 (CanLII)

[22] Ms. Moore submits the trial judge erred in relying on the notice provisions of her employment contract to calculate damages for constructive dismissal. She argues that once the trial judge found Apollo constructively dismissed her, the employment contract was void and its terms could not be used to calculate the notice to which she was entitled.

[23] I do not accept this submission. Provisions respecting notice of termination of employment can limit the pay applicable on constructive dismissal: Simpson v. Global Warranty Management Corp., 2014 ONSC 6916 (CanLII) (Div. Ct.), at paras. 3-4; Howard Levitt, The Law of Dismissal in Canada, loose-leaf (February 2017 – Rel. 51), 3d ed., (Aurora: Canada Law Book, 2003), at para.11:40.10.

[24] In the present case, the terms of the employment contract specifically address the calculation of notice upon constructive dismissal. Section 10 provides:

If Apollo terminates your employment, you shall be entitled to receive only such notice of termination, termination pay, benefit continuation and/or severance pay, if any, as are required by the Employment Standards Act, 2000 in the circumstances of the termination. This paragraph defines and limits your full entitlement to notice of termination, pay in lieu of notice, benefit continuation and severance pay upon termination of employment, and shall apply regardless of any changes to the terms and conditions of your employment (including changes in position, duties and responsibilities, reporting relationships, and compensation). Please read it carefully.  

[25] Accordingly, I see no error in the trial judge’s findings that Apollo gave Ms. Moore notice of its intent to terminate “that was well within the contractual requirements” and that Ms. Moore “received what she was entitled to.”