Background
Jack Hill worked for B&B Towing for about 17 years, most recently as a road boss. After emergency surgery, he took long-term disability leave in May 2020. His doctors later supported a trial return to work with lifting restrictions, a gradual increase in hours, and preferably administrative duties.
While Hill was away, the company’s principals performed the road-boss work. They told him the position had been eliminated for financial reasons and offered him work as a tow-truck driver at lower pay after eight weeks. Hill returned in January 2022 but maintained that the demotion was a constructive dismissal. After a back injury in February, he did not return. The trial judge found constructive dismissal, rejected B&B Towing’s argument that the employment contract had been frustrated, and awarded 22 months’ notice damages of $236,163.77.
The Court’s Holding
The Court of Appeal upheld the finding that the employment contract was not frustrated. The employer had not proved that Hill could not perform the essential functions of the road-boss role within a reasonable time, or that accommodating his restrictions would impose undue hardship. The evidence supported the trial judge’s conclusion that Hill’s limitations were temporary and could be accommodated; the company had accommodated similar restrictions before and had not established that the physical components of the role were essential and unaccommodatable.
The court allowed the appeal in part on damages. It held that Hill had not proved that the company tow truck or cellphone were compensable employment benefits rather than work tools. Incidental personal use did not establish a benefit. The court deducted $123,000 for the tow truck and $2,640 for the cellphone, reducing damages by $125,640, while otherwise dismissing the appeal. Hill’s cross-appeal was dismissed as abandoned.
Key Takeaways
- An employer alleging frustration bears the onus of proving that the employee could not return to essential duties within a reasonable time, even with accommodation short of undue hardship.
- A temporary disability and restrictions that can be accommodated do not frustrate an employment contract.
- Wrongful-dismissal damages for a vehicle or cellphone require proof of a genuine personal employment benefit, not merely use of an employer-provided work tool.
Why It Matters
The decision reinforces that frustration is a fact-specific and demanding defence in disability-related employment disputes. Employers cannot rely on an employee’s absence or restrictions alone where the evidence supports a possible accommodated return to work.
It also draws a practical line on notice-period damages: employees must prove both entitlement to, and the value of, claimed fringe benefits. Specialized work equipment—even if occasionally used personally—is not automatically compensable.