Former executive assistant loses appeal against Qulliq
Justices rule woman had no intention of keeping job
Casey Lessard
Northern News Services
Monday, May 25, 2015
IQALUIT
Qulliq Energy Corporation (QEC) has won an appeal filed by a former employee who sued for $444,000 claiming she was "constructively dismissed" in 2010. Justice Susan Cooper decided against her claim in January, but the decision was appealed.
Kucera was former QEC president Peter Mackey's executive assistant for more than a year starting in 2009.
In an April 24 decision issued last week, Nunavut Court of Appeal Justices Patricia Rowbotham and Russell Brown upheld Cooper's decision that a letter Kucera's lawyer sent to QEC on Aug. 5, 2010 alleging constructive dismissal and asking to set up negotiations for a termination package showed Kucera had no intention of remaining at her job.
The letter, QEC argued, gave the corporation just cause to dismiss Kucera. Cooper and two appeals judges agreed.
"Much of the content of your solicitors' (letter) is untrue and expresses not only your unwillingness to remain loyal and committed to your employment," QEC responded August 6, 2010, "but also demonstrates clear insubordinate behaviour such that (Qulliq is) unable to continue to place any level of faith in your intentions any longer."
In its statement of defence, QEC stated that Kucera "purported to assert constructive dismissal for the sole purpose of extracting severance payment from the defendant in the face of her own resignation."
Constructive dismissal occurs when an employer unilaterally decides to make significant changes to the terms of a worker's employment contract. Kucera had argued that director of human resources Catherine Cronin created a hostile work environment. The conflict led to a mediation that was unsuccessful because it was run by a QEC employee who reported to Cronin, Kucera alleged.
Kucera had taken her job knowing the corporation was preparing to restructure. During her time with QEC, her role was downgraded from grade G to F, yet despite a reduction in responsibility, Kucera did not face a pay cut. In fact, she received a raise that year.
In her judgment, Cooper had stated that "employers must be allowed some flexibility to restructure the organization as circumstances demand without risking the potential for a claim of constructive dismissal in response to each change."
In a dissenting memorandum of judgment, Justice Ronald Berger stated that QEC's next-day reply to the letter indicated that the corporation had long planned to dismiss Kucera, and that seeking to enter negotiations about a severance package "is not tantamount to resignation or repudiation."
