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...