October 13, 2015
Koskie Minsky filed materials to seek leave from the Supreme Court of Canada (“SCC”) to appeal the Nunavut Court of Appeal’s (“NUCA”) decision in a case that could impact employees across Canada. This leave application, if successful, will allow the SCC its first opportunity to consider whether an employee who raises concerns about her conditions of employment can be said to have effectively resigned.
Former employee, Sarah Kucera (“Kucera”), is seeking permission to challenge the NUCA decision that by sending a solicitor’s letter alleging constructive dismissal to her employer, Qulliq Energy Corporation (“Qulliq”), which is wholly owned by the Nunavut government, she in fact resigned.
In August 2010, Kucera’s counsel wrote a letter to her employer, taking the position that Kucera had been constructively dismissed. The letter went on to state that Kucera was prepared to continue her employment while the parties negotiated her termination package. The following day, Qulliq took the position that the letter was grounds for termination for cause. The Trial Judge held that the employee’s working conditions did not amount to a constructive dismissal, and the letter from her counsel therefore amounted to a repudiation of the employment contract. That decision was upheld on appeal, although a third judge dissented. Consequently, Kucera was left without a job and without compensation.
This finding has significant consequences for workers across Canada. The NUCA decision means that an employee’s expression of discontent regarding their conditions of work, or the assertion of an allegation of constructive dismissal, brings with it the potential consequence of being said to have effectively resigned from one’s position with no compensation. We are advised that QEC maintained a very aggressive defence throughout, including pursuit of a Security for Costs motion against Kucera, in February 2012, in which they were unsuccessful.
The decision of the NUCA from which leave to appeal is sought both marks a dramatic departure from existing legal principles and creates conflicting appellate level decisions. We are hopeful that leave will be granted to afford the SCC the opportunity to clarify these issues appropriately.
Kucera v Qulliq Energy Corporation, 2015 NUCA 2 (CanLII)