What qualifies as constructive dismissal?Team
Most job contracts, if they have no definite end date, can be terminate at any point by the employer, provide 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. So, The issue of constructive dismissal occasionally arises when an employee alleges that they are being force to resign due to a one-side change to their employment by their employer. There are a number of situations that could be a 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 dismiss, and what to look out for in the future.
Constructive Dismissal Defined
At the heart of a constructive dismissal is a change to employment that deeply affects the foundation of an employment agreement. For different situations, that can look like very different things occurring, but the important part is that it must be unilateral. So, The employer must have made a change to the situation of employment that fundamentally changed the worker’s job, or that made it impossible for them to continue working.
Since the employer hasn’t actually terminate the employee’s contract, it is call constructive dismissal. 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 agree upon by both the employer and the employee.
In situations of constructive dismissal, the employee is entitle to compensation in lieu of notice, and sometimes, damages award by the courts. So, If you feel that you may have a case of constructive dismissal, keep reading for more information.
Do You Have a Constructive Dismissal Case?
It is important to recognize that only a lawyer can properly advise you if you are concerned about a possible constructive dismissal case.
However, constructive dismissal cases can often be spotted by looking at whether an employment situation has change without input from the employee. If you are an employee who has been told that your job is moving locations. If your pay has suddenly been cut to less than your original agreement. There has been some sort of behaviour that prevents you from completing your tasks. So, you may have a case of constructive dismissal.
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 has to substantially alter a term of the contract. The court must ask whether a reasonable person in the situation of the employee would have felt. At the time of the breach the foundational terms of the initial employment agreement were change in a substantial way.
The Supreme Court also decided that the breach can be a single incident. Such as requiring that the employee move across the country. A series of actions, such as a pattern of behaviour that makes an employee unable to work.
Some signs of constructive dismissal might include:
- 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.
What Should be Your Next Steps?
If you feel that you have been constructively dismiss, there are a few things that you should consider next. To begin, seeking legal counsel from a qualified employment lawyer at Achkar Law will help you to navigate the often-confusing situation that surrounds the issue. So, An employment lawyer can help you get the best outcome, whether that be finding a way to keep your job or receiving compensation from your employer.
It is a good idea to avoid signing any official resignation forms before speaking to a lawyer, if possible. Signing an official resignation may make it easier for an employer to prove that the resignation was voluntary.
A constructive dismissal occurs when an employer makes a unilateral. One-sided change to an employee’s work life that changes the foundation of their employment agreement. If an employee experiences constructive dismissal, they may be entitle to severance pay. In some cases, damages award by the courts. In some cases, if the employee hasn’t already resigned, the employee can enforce the original employment agreement.
If you believe that you have experienced a situation that qualifies as constructive dismissal. Make sure you reach out to a qualified employment lawyer at Achkar Law for help. So, An employment lawyer can ensure that you get the best possible outcome for your situation.
If you are an employee with questions about constructive dismissal. Our team of experienced workplace lawyers at Achkar Law can help. So, Contact us by phone toll-free at 1 (800) 771-7882 or email us at [email protected], and we will be happy to assist.
If you are a small or medium-sized company looking for full-service support with a same-day response, visit our CLO Program page for our strategic solutions.