November 5 2016
A paper I wrote for an Employment Law course with Professor Hugh Collins (now of Oxford) while I was doing my LLM at the London School of Economics is now number 9 on the SSRN list of most downloaded papers of all time in the subject area of Labour and Employment Contracts.
The paper is entitled “Employer Bullying: Implied Duties of Fair Dealing in Canadian Employment Contracts“. It was published in the Queen’s Law Journal in 2005, and won the David Watson Memorial Award that year for the paper published in the Queens Law Journal making the most significant contribution to legal scholarship. It was also cited recently by the Supreme Court of Canada in Potter v. New Brunswick Legal Aid Services Commission for the proposition that a “duty of good faith and fair dealing [is] gaining acceptance at common law”. It may be time to revisit the thesis in the paper considering the past decade of emerging case law on the subject. Alas, to find the time.
Here is the abstract:
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.