Employee’s Delay Not Condoning of Constructive Dismissal

Lewis Waring, Paralegal, Student-at-law, Editor, First Reference Inc.

In McGuinty v 1845035 Ontario Inc (McGuinty Funeral Home) (“McGuinty”), an employee who returned to the workplace after an extended leave was found to have been constructively dismissed despite the fact that he had continued to work after the event leading to his constructive dismissal had taken place. McGuinty is important because it shows employers that a possible constructive dismissal claim does not necessarily go away once an employee returns to the workplace. In other words, a constructive dismissal claim does not require that an employee no longer comes into the office. Constructive dismissal, instead, is a question of whether an employer has engaged in certain behaviour which has resulted in the breach of its employment contract with the employee.

Selling family funeral parlour results in lack of trust

In McGuinty, the employee was a former third-generation owner of the employer`s organization, the McGuinty Funeral Home. In 2012, the employee sold the business when he was 55 years old. As part of his employment agreement with the new owners, the employee agreed to continue working as General Manager for ten years. The agreement did not set out any termination provisions. Still, it did contain a non-competition clause that would prevent him from working for other funeral homes for a 10-year period following termination.

Unfortunately, the employee developed a lack of trust with the new owners, who began tracking his hours at the office and eventually prohibited him from using the company vehicle for personal use. In response, the employee sent a letter demanding continued use of the vehicle, claiming that it was part of his agreement. Soon after, the employee removed some furniture that he had stored at the workplace, and the employer came to believe that he had removed important files. As a result, the employer changed the locks to the workplace.

The employee then began a two-week medical leave, sending the employer a hand-written note that said he was not stepping down from his position but was merely taking a medical leave. The employer demanded that the employee return to work and then allegedly indicated that he was no longer welcome. Soon after, the employee returned to the workplace to attend a funeral and found that his desk had been moved and his picture, along with pictures of his family members, had been removed.

Following these events, the employer and employee exchanged communications. The employee maintained that he was on medical leave, and the employer demanded that he either return to work or lose his benefits. The employee did not return to work, and eventually, both sides ceased communicating with each other.

Constructive dismissal and condonation

In some cases, an employee who has been constructively dismissed might lose his or her ability to file a claim for constructive dismissal. This may occur if the employee “condones” the constructive dismissal. Condonation of a constructive dismissal occurs when an employee whose employer has breached his or her employment contract decides to accept that breach and remain employed. In other words, an employee who falls victim to an employer’s breach has a choice. Namely, he or she can choose to maintain the employment relationship or sever it. An employee who suffers a constructive dismissal, in this sense, has the power to decide how to proceed. However, the employee’s choice has binding effects. If an employee who has been constructively dismissed chooses to maintain a relationship with the employer, he or she loses the chance to sever the employment relationship at another time. An employee who condones an employer’s constructive dismissal is not entitled to change his or her mind afterwards.

Although this choice seems relatively straightforward, not every case of constructive dismissal which involves an employee returning to work results in a finding of condonation. Instead, there are some cases where an employee returns to the workplace after being constructively dismissed but continues to reject the employment relationship. Whether an employee who returns to the workplace after being constructively dismissed condones that constructive dismissal depends upon the circumstances specific to the case. For example, the mental health of an employee that returns to the workplace after being constructively dismissed might ultimately lead to a lack of his or her condonation of the dismissal despite the fact that he or she continues to show up to work.

The length of time an employee waits before choosing whether or not to condone an employer’s constructive dismissal can result in the employee condoning the breach whether or not the employee in fact explicitly decides to do so. By continuing to work for a lengthy period after experiencing a constructive dismissal, the employee, by his or her actions, communicates that he or she wishes to remain employed by the employer.

The employee did not condone his constructive dismissal

Yet, in McGuinty, the length of time it took for the employee to make his choice did not prevent him from severing the employment relationship. The reason that the employee’s delay did not result in his loss of an opportunity to sever his employment relationship is because of the reason for his delay. That is, the employee took a long time to choose whether or not to sever his employment relationship because the employee did not return to the workplace for a long period of time after his employer constructively dismissed him. In fact, the reason for the employee’s long absence from the workplace after being constructively dismissed was the same reason for his constructive dismissal in the first place.

The reason for the employee’s lengthy period of absence was primarily his struggle with anxiety and depression following his constructive dismissal. These mental health symptoms prevented him from returning to the workplace and thus prevented him from confronting the choice that he would eventually be required to make upon return. Secondly, the employee’s lengthy period of absence was due to the immense and serious nature of the decision he needed to make. The employer whom the employee was considering cutting out of his life was a family business where he had worked for over 30 years before the business was sold. This resulted in his having a deep connection to the business itself. Also, when the business was sold, his new employment contract contained a non-competition clause which would theoretically bar him from seeking other work in the industry. Thus, the employee’s decision to recognize his employer’s constructive dismissal was in reality a decision to abandon an organization he was deeply tied to and a decision to cut himself out of his chosen field of work.


Employers can learn from McGuinty that employees that take some time in deciding whether or not to sever a relationship after being constructively dismissed do not necessarily condone their employer’s breach. The question of whether an employee has condoned a constructive dismissal is determined on a case-by-case basis and, as such, employers should be wary of making their own determination regarding condonation of constructive dismissal. Instead, employers who feel they may be at risk of a claim of constructive dismissal should obtain legal advice and err on the side of caution.

Comments are closed.