In Timothy Comeau v. Valcom Consulting Ltd, 2025 NBKB 253 (CanLII)
Judge DeWare had a situation where at the expiry of a series fixed term contracts that contained no termination clause, the Employer submitted a contract that contained a series of clauses that limited the Employee’s entitlement on termination to the ESA minimums ( which in NB is only 8 weeks ).
The Judge found that this was a material change to the employment relationship and therefore it constituted a constructive dismissal. This is what the judge said:
[27] In the current circumstances, the Court must determine if the alterations to the March 2024 terms of employment were substantial. The alteration of the notice requirement upon termination is a substantial change to the previous terms of the relationship between the parties. It is difficult to conceive how this cannot be considered a substantial term of employment. The alteration to the terms of the contract surrounding layoff, suspension, and termination go to the heart of an employment contract. While the Defendant points out the Plaintiff never raised these terms with the Defendant but only expressed displeasure with the salary, the Plaintiff wasn’t aware of the other substantial changes to the employment contract until he reviewed it with his lawyer.
My Comments:
The pre-existing fixed term contract expired at the same time that the employer’s new contract proposal was presented to the employee.
One would have thought that the employers’ position would have been as follows:
” Your Honour, the employment relationship ended when the fixed term expired. No notice is required to end a fixed term contract upon its expiry. In subsequent negotiations, the parties were unable to reach an agreement on a new contract. That is not a dismissal. End of case”
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