What Qualifies as Constructive Dismissal?
Most job contracts, if they have no definite end date, can be terminated at any point by the employer, provided that one of two things is given to the employee: reasonable notice, or payment in lieu of reasonable notice.
An employee can also choose to resign at any time. However, by choosing to resign, employees forfeit their ability to get severance, so long as they have resigned freely and voluntarily.
The issue of constructive dismissal occasionally arises when an employee alleges that they are being forced to resign due to a one-sided change to their employment contract by their employer. There are a number of situations that could be constructive dismissal.
This article will outline what constructive dismissal can look like, what your next steps should be if you believe that you have been constructively dismissed, and what to look out for in the future.
What Is Constructive Dismissal?
At the heart of constructive dismissal is a change to employment that deeply affects the foundation of an employment agreement.
In different situations, this can manifest in various ways, but the key point is that it has to be a one-sided action. The employer should have made a significant change to the work conditions that either fundamentally transformed the worker’s job or made it impossible for them to continue working.
Since the employer hasn’t terminated the employee’s contract, it is called constructive dismissal. That is to say, the employer is not meeting their obligations by upholding their side of the arrangement.
A resignation cannot be constructive dismissal if the employee was given proper notice of the change or if the change was agreed upon by both the employer and the employee.
In cases of constructive dismissal, when an employee is compelled to resign due to unbearable work conditions created by the employer, they have the right to receive compensation equivalent to the notice period they would have been entitled to if they had been formally dismissed. Additionally, there are instances where the courts may also grant damages as a form of reparation.
Do I Have a Constructive Dismissal Case?
It is important to recognize that only an employment lawyer can properly advise you if you are concerned about a possible constructive dismissal case.
Identifying constructive dismissal cases often involves examining whether an employment situation has changed without the employee’s input.
You might have a potential case if:
- Job Relocation
You, as an employee, have been informed that your job is moving to a different location. - Pay Reduction
Your pay has been unexpectedly reduced to an amount lower than what was initially agreed upon. - Task Impediment
Certain actions or behaviors have arisen that hinder you from fulfilling your job responsibilities.
If any of these situations apply to you, there’s a possibility that you could be facing a case of constructive dismissal.
Contact us today to schedule a consultation with our Experienced Employment Lawyers
In 2015, the Supreme Court of Canada laid out a two-step test for constructive dismissal:
(1) The employer’s unilateral change needs to constitute a fundamental breach of the original employment contract; and
(2) If the change constitutes a breach, it must substantially alter a term of the contract.
The court must ask whether a reasonable person in the situation of the employee would have felt that at the time of the breach, the foundational terms of the initial employment agreement were changed in a substantial way.
Identifying constructive dismissal cases often involves examining whether an employment situation has changed without the employee’s input.
You might have a potential case if:
- Job Relocation
You, as an employee, have been informed that your job is moving to a different location. - Pay Reduction
Your pay has been unexpectedly reduced to an amount lower than what was initially agreed upon. - Task Impediment
Certain actions or behaviors have arisen that hinder you from fulfilling your job responsibilities.
If you find yourself in any of these situations, it’s possible that you could be dealing with a case of constructive dismissal.
Signs of constructive dismissal could include, and are not limited to:
- A significant change to work hours,
- A change in compensation or salary,
- Refusing to pay an employee,
- Being temporarily laid off,
- A relocation of the workplace,
- Behaviour in the workplace that makes it difficult to perform work or a toxic workplace,
- A demotion,
- Taking away benefits that were in the employment contract,
- Forcing an employee to work in unsafe conditions.
If you believe you’ve experienced constructive dismissal, there are several important steps you should take. First and foremost, seeking guidance from a skilled employment lawyer is crucial. This will assist you in navigating the often-complex landscape associated with this issue. An employment lawyer can work towards achieving the best possible outcome, whether it involves retaining your job or obtaining compensation from your employer.
It’s advisable to refrain from signing any official resignation documents before consulting a lawyer, if possible. By avoiding such a step, you can prevent making it easier for your employer to assert that your resignation was voluntary.
Conclusion
Constructive dismissal takes place when an employer unilaterally enacts a one-sided alteration to an employee’s work situation, fundamentally changing the basis of their employment contract. If an employee undergoes constructive dismissal, they might be eligible for severance pay. Additionally, courts may grant damages in certain instances. If the employee has not yet resigned, they may have the option to uphold the original terms of the employment agreement.
If you suspect that you have encountered a situation that qualifies as constructive dismissal, it’s essential to contact a proficient employment lawyer at Achkar Law for assistance. An employment lawyer can ensure you achieve the most favourable resolution for your circumstances.
Contact Us
If you are an employee or an employer with questions about constructive dismissal, the team of experienced employment 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.
