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Can You Claim Constructive Dismissal Without Resigning?

In Ontario, a constructive dismissal is when an employer makes a substantial change to the terms of employment without the employee’s consent. If this happens, the employee may treat this as a termination of the employment relationship. As an employee, can you claim constructive dismissal without resigning?

What amounts to a constructive dismissal?

A constructive dismissal may occur where an employer makes a substantial and unilateral change to the terms of an employee’s employment. The change must be significant, such as a change to a fundamental term or condition of employment. This significant change must also be on that the employee did not consent to, either explicitly or implicitly. 

Constructive dismissal is essentially a forced resignation as the employer is acting in a way that demonstrates an intention to no longer be bound by the terms of the employment contract. However, an employee does not necessarily have to stop working to claim constructive dismissal.

If I think I have been constructively dismissed, what are my options?

The courts have outlined that where an employee experiences a significant and unilateral change to their terms of employment, they employee has three options:

  1. Accept the unilateral change and continue their employment;
  2. Reject the change and resign; or
  3. Notify the employer that they are rejecting the change and continue their employment as before.

Where an employee refuses to accept the new change and continues to work under the third option, the employer can respond in several different ways. For example, the employer may permit the employee continue working on the same employment conditions as before. However, the employer may terminate the employee with notice. In some instances, the employer may terminate the employer with proper notice, then offer re-employment on the new terms. 

Where the employer terminates the employee, it is important to seek legal advice to ensure that you are receiving your entitlements upon termination.

Are there risks to claiming a constructive dismissal?

Since an employee has the legal burden to show that they were constructively dismissed, there is a level of risk involved. For example, if an employee claims constructive dismissal and stops completing their work but is ultimately unable to prove s/he was constructively dismissed, s/he will be found to have resigned.

If you believe you have been constructively dismissed, we recommend seeking legal advice from an experienced lawyer right away.

Contact Us 

If you are an employer facing a constructive dismissal claim, or an employee who believes you’ve been constructively dismissed, 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 would be happy to assist.

If you are a small or medium-sized company looking for full-service support with same day response, visit our CLO Program page for our strategic solutions.