Can Your Boss Yell at You in Ontario?
A company’s culture significantly influences job seekers’ decisions. Employees seek a positive, respectful work atmosphere, avoiding situations where managers or colleagues create a toxic environment. Such toxicity can compel an employee to resign and potentially pursue a constructive dismissal claim.
This article delves into the concept of constructive dismissal and identifies behaviours that may constitute it. It outlines steps to take if you’ve experienced this situation and highlights the invaluable assistance a constructive dismissal lawyer can provide.
What is Constructive Dismissal?
A constructive dismissal is a termination of employment through an employer’s actions or omissions instead of words. It is a kind of termination a court “constructs” in response to employers who try to force their employees to resign or make major changes to the employment agreement without an employee’s consent.
Most commonly, constructive dismissal can occur when:
- An employer makes a significant change to a fundamental term of an employment agreement, such as hours, salary, working location, and title, without the employee’s consent; or
- An employer creates or fails to address workplace issues that result in an intolerable toxic work environment for an employee.
This contrasts with a normal termination of employment where an employer gives their employee a formal notice of termination. However, both constructive and ordinary terminations of employment entitle employees to severance.
Which Employer Conduct is Captured in a Constructive Dismissal Claim?
Employers have a general obligation to treat their employees with dignity and respect. This obligation flows to all employees, including upper management and supervisors. In Ontario, employers also have obligations to maintain a bullying, harassment, and discrimination-free workplace under the Occupational Health and Safety Act and Human Rights Code.
Employers who fail to properly address workplace bullying, harassment, and discrimination may be liable for constructive dismissal. This is a highly fact-specific analysis. Generally, a constructive dismissal claim is based on continuous wrongful behaviour rather than a single incident. Unless of course, a single incident is so unacceptable that an employee cannot reasonably be expected to continue working.
A manager yelling on occasion, absent any other wrongdoing, is unlikely to constitute a constructive dismissal. However, if a manager yells constantly, engages in bad faith workplace discipline, and generally creates an unreasonably stressful work environment, that may constitute a constructive dismissal.
Most frequently, employees have a basis to claim constructive dismissal if their employer’s conduct has forced them to go on medical leave. The key question to ask is: could the employee reasonably be expected to return to their workplace after what their employer has done or failed to do?
When can an employee claim Constructive Dismissal?
An employee may claim constructive dismissal if it doesn’t give them an alternative other than quitting. An employee may raise the issue with a lawyer within 30 days if the employee believes the dismissal was wrongful or constructive. The wrongful termination lawsuit must be filed before the expiry date of statutory limitations.
Constructive Dismissal and Legal Advice
Employees who believe they were wrongfully or constructively dismissed in Ontario should promptly seek legal advice, ideally within 30 days of dismissal.
It is essential to initiate legal action within two years of dismissal to avoid losing the chance for recourse. To navigate the legal process effectively, employees should consult with a constructive dismissal law firm.
What to Do if You Think you have Experienced a Constructive Dismissal?
Before resigning due to a situation created by your employer, consult an employment lawyer. You may have a case for constructive dismissal and be eligible for damages. Don’t resign without seeking legal advice, even if your employer offers compensation or insists resignation is the only option.
The timing of alleging constructive dismissal matters. A delayed claim for constructive dismissal may be perceived as accepting the employer’s changes, while a premature claim after a single incident of mistreatment may result in a failed claim and no severance pay.
Collecting and maintaining supporting evidence is crucial for an employee in a constructive dismissal case. Strong evidence, such as medical evidence, relevant written communications, and proof of job search efforts after leaving the employer, can make the argument more persuasive.
There is no substitute for asking an employment lawyer about the next steps and navigating the legal process. Constructive dismissals are inherently more risky than regular claims for severance. An employment lawyer can help you develop a sound legal strategy, negotiate, and navigate through the legal process. They can also help you assess what your entitlements are, and review any severance offers from your employer.
Conclusion
Consult a constructive dismissal lawyer if you are experiencing significant mistreatment from an employer, which can result in a constructive dismissal claim if it is a repeated pattern. A single incident is unlikely to lead to a severance claim.
Seeking legal advice is crucial in cases where employment has become unpleasant, as it can significantly impact a person’s life.
Contact Achkar Law
If you are an employer or an employee with questions about constructive dismissal or you otherwise need assistance at any stage of a workplace dispute, our team of experienced workplace lawyers at Achkar Law can help. Contact us by phone toll-free at 1 (800) 771-7882 or email us at [email protected], and we will be happy to assist.
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