If operations are being moved from one location to another and the affected employees are being offered the same position at the new location, what is the maximum distance it can be from the “home” plant to be considered reasonable and not constructive dismissal?
Question: If operations are being moved from one location to another and the affected employees are being offered the same position at the new location, what is the maximum distance it can be from the “home” plant to be considered reasonable and not constructive dismissal? I once read that it must be within 50 kilometres of the “home” plant. Is that correct? Is there a minimum notice period required?
Answer: When an employer wants to transfer an employee from one location to another, the employer must proceed cautiously, as such a transfer may amount to constructive dismissal if the transfer is not an express term or cannot be considered an implied term of the employment contract.
A constructive dismissal occurs when the employer unilaterally makes a fundamental change to the employment contract.
In assessing whether or not the transfer amounts to a constructive dismissal, courts will consider the written employment contract, if there is one, the terms of hire, the employee’s circumstances and the effect a move would have on the employee’s life.
In essence, the court will determine whether or not the distance the employee must travel to the new location is considered to be reasonable under the circumstances or if it can be said it was an implied term of the employment contract that the employee was expected to move if requested.
There is no maximum distance which the court will consider but, rather, the court will examine what would be reasonable for the employee to do in his situation. If an employee, in the course of his employment has moved from one province to another, it will likely be considered an implied term of the contract of employment that it is reasonable for him to move around.
Therefore, a transfer from Ontario to Quebec would likely not be considered unreasonable. However, if an employer requires an employee to relocate from one city to another, not having done so before, and which will place the employee in an intolerable situation, the courts may find the employee has been constructively dismissed.
Of course, when an employee is provided with reasonable notice of the terms of the transfer, this will not likely be considered a constructive dismissal as the employee will have had reasonable notice within which to consider the change.
Natalie MacDonald is an associate with Grosman, Grosman & Gale, a Toronto-based law firm specializing in employment law. She can be reached at (416) 364-9599 or [email protected].
Answer: When an employer wants to transfer an employee from one location to another, the employer must proceed cautiously, as such a transfer may amount to constructive dismissal if the transfer is not an express term or cannot be considered an implied term of the employment contract.
A constructive dismissal occurs when the employer unilaterally makes a fundamental change to the employment contract.
In assessing whether or not the transfer amounts to a constructive dismissal, courts will consider the written employment contract, if there is one, the terms of hire, the employee’s circumstances and the effect a move would have on the employee’s life.
In essence, the court will determine whether or not the distance the employee must travel to the new location is considered to be reasonable under the circumstances or if it can be said it was an implied term of the employment contract that the employee was expected to move if requested.
There is no maximum distance which the court will consider but, rather, the court will examine what would be reasonable for the employee to do in his situation. If an employee, in the course of his employment has moved from one province to another, it will likely be considered an implied term of the contract of employment that it is reasonable for him to move around.
Therefore, a transfer from Ontario to Quebec would likely not be considered unreasonable. However, if an employer requires an employee to relocate from one city to another, not having done so before, and which will place the employee in an intolerable situation, the courts may find the employee has been constructively dismissed.
Of course, when an employee is provided with reasonable notice of the terms of the transfer, this will not likely be considered a constructive dismissal as the employee will have had reasonable notice within which to consider the change.
Natalie MacDonald is an associate with Grosman, Grosman & Gale, a Toronto-based law firm specializing in employment law. She can be reached at (416) 364-9599 or [email protected].
