Employer Bullying: Implied Duties of Fair Dealing in Canadian Employment Contracts
60 Pages Posted: 30 Jan 2006
There are two approaches to employer bullying in the Canadian common law of employment. One approach treats it as a breach of an implied term of the employment contract requiring fair dealing (repudiation by breach of contract, or RBB). The other treats it as a repudiation of contract without any breach (repudiation without breach, or RWB), because bullying makes the employment relationship intolerable. This paper compares these two approaches and contrast them with the British model, which treats employer bullying as a breach of an contractual implied term requiring the preservation of mutual trust and confidence. The author argues that the RWB approach provides a narrower scope of protection for employees than the RBB approach and discounts the possibility that separate damages should be available for breach of an implied term requiring fair dealing. The author considers the complicating factor of the Supreme Court of Canada's decision in Wallace. That case requires all damages resulting from employer bullying in the manner of dismissal to be treated as an extension to the reasonable notice required for termination of contract. This means that employer bullying in the performance of the contract can be treated as a distinct breach of the implied duty on Canadian employers to treat employees with decency, civility, respect, and dignity. The author proposes a test for distinguishing bullying conduct that is in the performance of the contract and conduct that is in the manner of dismissal.
Keywords: bullying, employment contracts, implied terms, constructive dismissal, common law
JEL Classification: J71, J28, K12, K31, K32
Suggested Citation: Suggested Citation