Alberta Employment Law Update - Summer 2012

IN THIS ISSUE

Post-Termination Conduct

In Gillespie v 1200333 Alberta Ltd., Justice J.M. Ross concluded employers cannot rely on a breach of a Non-disclosure Agreement after termination to retroactively justify the employer's repudiation of an employment contract.

Constructive Dismissal

Removal of the right to a benefit, or the opportunity to do something, is sufficient basis for the Court to conclude an employee was constructively dismissed. ADM Measurement Ltd. v Bullet Electric Ltd. was clear that any existing fiduciary duty owed by the employee to the employer and any consequent restrictive covenants end immediately upon constructive dismissal without cause.

Acceptance of Severance Offers and Releases

In Penney v Vipond Inc. the Master refused the Application for Summary Dismissal, on the basis that the severance contract containing a release clause was ambiguous. Specifically, unless a release is expressly acknowledged and accepted, parties

cannot rely on such a release to obtain summary dismissal.

SUMMARY OF DECISIONS

Gillespie v 1200333 Alberta Ltd., 2012 ABQB 105 [Gillespie]

In Gillespie the plaintiff employee was an occupational therapist who had been dismissed based on interpersonal conflict. One warning was given to the employee and she was dismissed three days later. Immediately following her dismissal, the employee cleaned out her desk and took a number of letters with her. These letters were complimentary however, they also contained sensitive and confidential information regarding her patients.

Once the defendant employer discovered the employee had removed these documents, the employer alleged the employee had breached the Non-disclosure Agreement. This breach was used to justify the employer's position that the employee had been dismissed with cause.

The Trial Judge concluded that while the evidence of personality conflicts and communication problems were not sufficient to justify the employee's dismissal, the employee's breach of the Non-disclosure Agreement was sufficient to justify dismissal.

On appeal to the Court of Queen's Bench the trial decision was reversed based primarily on the Trial Judge's conclusions on the facts. Specifically, the Trial Judge did not find the employee's removal of documents indicated a character flaw. Instead, he concluded that the breach of the Non-disclosure Agreement was a breach of a material term of the employment contract and that it would be detrimental to the employer's business.

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