Kussmann v. AT & T Capital Canada Inc.

Kussmann v. AT & T Capital Canada Inc.

The Court held that although the trial judge's specific finding that the March 1, 1997 salary reduction alone constituted a fundamental breach was open to question given pleading and trial conduct, the cumulative effect of three unilateral employer actions—the salary reduction, removal of the employee's administrative assistant, and the employer's refusal to pay an accrued Sandrelli override—amounted to constructive dismissal in July 1997; the employee was entitled to damages based on a 12-month notice period and to the Sandrelli override commissions for the pleaded period (May–July 1997); appeal dismissed, cross-appeal partially allowed.

Citation
2002 BCCA 281
Parties
Respondent (plaintiff): Tino Kussmann; Appellant (defendant): AT & T Capital Canada, Inc.
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
30 April 2002
Procedural Posture
Employment Law Appeal Concerning Wrongful/constructive Dismissal and Damages / Appeal to Court of Appeal for British Columbia; Judgment on Appeal and Cross Appeal
Outcome
Appeal dismissed; cross-appeal partially allowed.
Legal Topics
Constructive Dismissal, Wrongful Dismissal, Salary Reduction, Bonus/commission Entitlement, Mitigation, Reasonable Notice, Pleadings and Evidentiary Inferences
Source Language
English
Employment Law Contract Law Remedies Civil Procedure Constructive Dismissal Wrongful Dismissal Salary Reduction Bonus/commission Entitlement +3 more

Case Brief

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Parties

Tino Kussmann

Respondent (plaintiff)

AT & T Capital Canada, Inc.

Appellant (defendant)

Procedural Posture

Employment Law Appeal Concerning Wrongful/constructive Dismissal and Damages / Appeal to Court of Appeal for British Columbia; Judgment on Appeal and Cross Appeal

Legal Issues

  1. 1 Whether the March 1, 1997 salary reduction alone constituted a fundamental breach
  2. 2 Whether the employee condoned the employer's changes by continuing to work
  3. 3 Whether there was an enforceable agreement entitling the employee to the 'Sandrelli override' commission

Ratio Decidendi

The Court held that although the trial judge's specific finding that the March 1, 1997 salary reduction alone constituted a fundamental breach was open to question given pleading and trial conduct, the cumulative effect of three unilateral employer actions—the salary reduction, removal of the employee's administrative assistant, and the employer's refusal to pay an accrued Sandrelli override—amounted to constructive dismissal in July 1997; the employee was entitled to damages based on a 12-month notice period and to the Sandrelli override commissions for the pleaded period (May–July 1997); appeal dismissed, cross-appeal partially allowed.

Court Disposition

Appeal dismissed; cross-appeal partially allowed.

Orders

  • Affirmed that the respondent was wrongfully (constructively) dismissed and entitled to damages based on a 12-month reasonable notice period as found by the trial judge.
  • Award varied to include payment of the Sandrelli override compensation for the pleaded period (May–July 1997); amount for July to be calculated by the trial court if necessary.