Cheryl Waram

The plaintiff employee was temporarily laid off by the defendant employer.

The plaintiff brought a motion for summary judgment claiming constructive dismissal, arguing the employment contract did not permit temporary layoffs.

The employer argued the layoff complied with the Employment Standards Act.

The court held that a temporary layoff without express or implied contractual authority constitutes constructive dismissal, rejecting the argument that the ESA displaces the common law requirement.

The plaintiff was awarded statutory notice and severance pay.

However, the court capped common law damages at five months because the plaintiff failed to mitigate by refusing a recall to work, and these damages were fully offset by statutory payments and new employment income.

The appellant appealed the dismissal of his action for common law severance damages for wrongful dismissal.

He argued that a clause in his employment contract was void because it attempted to contract out of the Employment Standards Act regarding the inclusion of bonuses in termination pay.

The Court of Appeal upheld the motion judge's finding that the clause, read in context, preserved the appellant's statutory entitlements.

The appeal and the respondent's cross-appeal on costs were both dismissed.