Sunday, February 05, 2006

Dingwalls Constructive Dismissal

Question Period on CTV today was wall to wall le affaire Dingwall. And at only one point as everyone argued if he was fired or if he quit, and who lied, and why the Liberals did not release the arbitrators report on January 20 (did they supress it because of the election?) did anyone of all the MP's and pundits get it. Jay Hill the Conservative MP and past Conservative House leader said these two little words; "constructive dismissal''. Bingo!

Neither Dingwall nor the PM nor his cabinet ministers lied. Dingwall did indeed resign. He was not fired by the government. However under common law juridsprudence in Canada the arbitrator, as a judge would have probably ruled had Dingwall sued, more than likely made their ruling that indeed the forced retirement of Dingwall was in fact constructive dismissal and thus a firing by any other name.

And as I said before if the Conservatives overturn his severance he will have good grounds to expect a judicial ruling in his favour due to the arbitration finding, which will carry significant weight with a Judge as it is a common law matter.

In Canada unions and employers are bound not by common law but by labour law, a beast of a different nature. Rulings that are made in courts of law based on common law are available to non-union workers.

One of the most powerful is constructive dismissal, which allows a person to quit or leave their job on the premise that they are going to be fired, in effect the work place has been made so uncomfortable for them, a poisioned workplace, that though they leave voluntarily they are in effect being fired.

Constructive dismissal
Under the employment law of some states, judges will consider a situation where there has been a fundamental violation of the rights of an employee, by the employer, so severe that the employee would have the right to consider himself as dismissed, even though, in fact, there has been no act of dismissal on the part of the employer. For example, if an employer tries to force an employee to accept a drastic demotion, the employee might have a case for constructive dismissal and would be able to assume that the employment contract has been ended and seek compensation from a court.

As Barry Chivers a noted Edmonton labour lawyer in a presentation on constructive dismissal I attended a number of years ago pointed out, this is a more powerful arguement in common law than most arbitration rulings avialable under labour law in Canada.

In fact the whole point of his presentation was that non-unionized workers and managers are able to avail themselves of a much more powerful weapon in the courts against employers, than unionized workers are, with the judgements around constructive dismissal. Which is why you will find your local government whether muncipal, provincial or federal settling out of court when they dismiss non-union or contract management staff. And just as in those case the gnashing of theeth and howling of the press will do nothing to reduce the severance payments made regardless of how high they are.

I hope this clears up the misconceptions and misrepresentations of my original post
Dingwall Wins Entitlement made by The Third Edge of the Sword

Dingwall handed a mint
$417,780 severance awarded to ex-MP, Crown Corp. boss
By STEPHEN MAHER Ottawa Bureau


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