Constructive Dismissal: 4 Things to Know
Employers do not always dismiss employees using clear language such as “you’re fired”. Sometimes, employers will constructively dismiss employees by creating a workplace environment that is so toxic the employee resigns on their own. Such circumstances, known as “constructive dismissal”, occur when the employer essentially forces an employee to resign because the employer either violated a fundamental term of the employment contract, modified them unilaterally, or created a toxic working environment. The change must have been significant, and the employee must not have consented to the change.
After a breach has occurred, the next consideration is whether a reasonable person would have believed that an important term of the employment contract had been materially altered at the time of the breach.
This article outlines several important things that you should know before making a constructive dismissal claim.
Signs of a Fundamental Breach of Contract
A substantial change to the original employment contract will qualify as a serious breach. The following changes may amount to fundamental breaches:
- Refusal to pay the employee’s salary.
- Unilateral decrease in wages, benefits package, or bonus entitlement by the employer.
- Unilateral changes to an employee’s work hours.
- Unilateral modification of an employee’s employment status (e.g. from full-time to part-time).
- Unilateral relocation of the place of employment, if relocation was not part of the job.
- Significant changes to an employee’s duties, responsibilities, title, or rank.
- Creation of a toxic work environment.
- Failure to provide Ontario employment standards (e.g., overtime pay, vacation pay, etc.).
However, there must be a fundamental breach to be constructively dismissed. Whether the breach is fundamental depends on the facts and the circumstances of each case.
It is best to consult with an experienced employment lawyer who can advise on the unique circumstances of your case.
Key Exceptions to Constructive Dismissal
Not all changes to an employment contract amount to a constructive dismissal. Employers can minimize the risk of employee constructive dismissal claims through strategic decision-making. Employers can work to limit their exposure to liability in the following situations:
- When the employee gives written consent to a change.
- The employer provides a clear notice regarding a change and offers a benefit such as a signing bonus to confirm the enforceability of the new agreement.
- The employer promptly addresses complaints about a toxic workplace by conducting an investigation and taking steps to address the issue.
- If the employee continues working regardless of the change and does not reject it within a reasonable time.
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How to Prove Constructive Dismissal?
In a constructive dismissal claim, the burden of proof rests with the employee to establish that the employer unilaterally made changes that resulted in a fundamental alteration to their employment.
It is crucial to maintain a record of any emails, texts, or letters discussing modifications to working conditions as evidence. Take thorough notes during or after meetings where concerns are addressed. It is important to keep track of incidents that contribute to an unacceptable work environment, including dates and individuals involved.
If there is harassment or bullying, you should notify your employer in writing. Employers have an obligation to investigate human rights complaints and provide a safe working environment.
If your employer makes changes to your pay or working conditions that constitute a unilateral, fundamental alteration to your job, it is important to refuse to accept such changes.
If you may have a constructive dismissal claim, you should contact an experienced employment lawyer to help you navigate next steps.
When Should an Employee Quit?
When contemplating leaving a secure job, it is recommended that employees talk to an employment lawyer. It is common for employees to resign without realizing they were constructively dismissed. An employment lawyer can help you safeguard your rights and advise you throughout the process.
It is imperative to have a professional evaluate the circumstances and determine if there have been fundamental changes to the working conditions. Prematurely leaving a job may hurt your potential claim.
Seeking legal advice plays a vital role in helping employees facing constructive dismissal gain a comprehensive understanding of their rights and the potential consequences associated with their actions. By seeking timely legal guidance, employees can make informed decisions about their employment situation and safeguard their interests effectively.
Conclusion
When an employee considers leaving their secure job, it is vital to consult with an employment lawyer to fully understand their rights and options. Many employees unknowingly experience constructive termination when their employer creates a toxic environment that forces the employee to resign. It is crucial to seek professional guidance to assess whether there have been fundamental changes to the working conditions. Seeking legal advice before resigning allows employees to make informed decisions and comprehend the potential consequences.
If you believe you have experienced constructive dismissal, Achkar Law’s experienced employment lawyers can assist you in filing a lawsuit and navigating the legal process. They can provide guidance on court preparation and determine the most appropriate course of action, whether it involves proceeding to trial or seeking a summary judgment.
Contact Us
If you are an employer or an employee needing assistance, our team of experienced workplace lawyers at Achkar Law can help.
Contact us by phone toll-free at 1 (866) 553-1976 or email us at [email protected], and we will be happy to assist.
