Does An Employee Automatically Resign If They File A Constructive Dismissal Action?

What happens when an employee files a constructive dismissal action against their employer, but keeps coming to work? Can the employer take the position that the employee has resigned, or must the employer allow the employee to keep working indefinitely? This issue was recently considered by the Nova Scotia Supreme Court in Garner v Bank of Nova Scotia, 2015 NSSC 122. In that case, Garner was employed by the Bank of Nova Scotia (the "Bank") for 35 years, most recently as Branch Manager. His performance evaluations were excellent, and the branch that he managed exceeded its financial targets ten out of eleven years. Garner expressed an interest in moving to a more senior position and applied for several positions. He was not selected for any of the positions.

In April, 2011, he filed a complaint of age discrimination against the Bank with the Canadian Human Rights Commission alleging that he was not selected for a more senior position due to his age. The parties unsuccessfully attempted to mediate the human rights complaint, and Garner subsequently withdrew his complaint. In August, 2011, Garner filed an action against the Bank in the Nova Scotia Supreme Court alleging discrimination, constructive dismissal and tortious interference with contractual relations.

After receiving the Statement of Claim, the Bank offered to continue the employment relationship if Garner withdrew his action. The Bank took the position that Garner's allegations in the action were inconsistent with his continued employment, and that the commencement of the action was a repudiation of his employment. Garner refused to withdraw the action, and the Bank indicated in response that Garner was not to report to work after September 8, 2011. On September 12, 2011, Garner amended his pleadings to claim wrongful dismissal, retaliation, defamation and tortious infliction of nervous shock.

Following fifteen days of trial over the course of three months, the Court concluded that Garner was not constructively dismissed, but that he was wrongfully dismissed by the Bank.

With respect to the claim for constructive dismissal, Garner alleged that he was constructively dismissed as a result of discrimination and breaches of the Bank's duty of good faith and fair dealing. The Court concluded that age was not a factor in the decisions not to promote Garner and that he was not discriminated against on the basis of age. The Court declined to rule on whether employers have a general duty to...

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