EVERYTHING YOU NEED TO KNOW ABOUT CONSTRUCTIVE DISMISSAL
WHAT IS CONSTRUCTIVE DISMISSAL?
Constructive dismissal is a legal concept that allows the court to decide if an employee has been terminated, even in circumstances where the employee has appeared to have quit. Usually, the employer has failed to comply with the employment contract or switched a term in the contract without the employee’s knowledge in a significant respect, thus forcing the employee to quit. For example, if the employer makes changes to the employee’s terms and conditions of employment that result in a significant reduction in salary or a significant adverse change in such things as the employee’s work location, hours of work, authority, or position, that employee may be forced to quit. Constructive dismissal may also include situations where an employer harasses or abuses an employee. If an employer gives an employee an ultimatum to “quit or be fired,” and the employee resigns in response, this can be considered constructive dismissal. However, if a change in the contract becomes effective after reasonable notice of the change, then there is no constructive dismissal.
The advice of an experienced employment lawyer can be invaluable when you’ve been constructively dismissed from your job.
The process is often difficult and confusing, which makes it all the more important to have someone on your side who knows what they’re doing and guiding you through every step with knowledgeable guidance!
SIGNS OF CONSTRUCTIVE DISMISSAL
- Evidence of reduction or elimination of salary, bonuses, commission, benefits, and entitlement.
- Temporary lay off
- Scheduling or shift change that impacts hardship such as childcare, religious belief, obligations, affecting your personal life or work balance seems unfair or unreasonable.
- Transfer to another department
- Demoted and responsibilities reduce
- Working in an unstable environment
Courts will also take into consideration harassment
- Repeated yelling;
- Repeated screaming;
- The use of vulgar language;
- Profane language;
- Inappropriate insinuations; and
- A hostile work environment that results from continual use of foul language and abusive conduct constitutes a constructive dismissal.
CATEGORIES OF CONSTRUCTIVE DISMISSAL
- A new term introduced by the employer without notice and the consent of the employee.
- The change will impact the employee’s job term.
- If the employee refuses the terms of the employment contract.
DOES THE EMPLOYER HAVE THE RIGHT TO MAKE THE CHANGE?
A change in an employment contract will only constitute constructive dismissal if the employer did not have the right to impose it. The employment contract will give the company the explicit right to do so by “implied right” based upon the circumstances. It is only where that right does not exist that an individual may have a legitimate right to object. You must review any contract before you sign it.
HOW CAN YOU PROVE CONSTRUCTIVE DISMISSAL?
In constructive dismissal cases, the onus of proof is on the employee to convince the Court that constructive dismissal is appropriate. For example, the employee can prove the employer had no right to change the employment contract. The employee can also prove that the employer’s conduct was the principal contributing factor that led the employee to leave the employment. They must demonstrate they had no other option but to leave the employment. Leaving the job is the last option.
WHAT HAPPENS IF YOU RESIGN IN CIRCUMSTANCES OF CONSTRUCTIVE DISMISSAL?
It is always best to seek professional advice before resigning. If the situation is akin to any of the above scenarios, you are entitled to claim compensation for constructive dismissal.
WHAT COMPENSATION (DAMAGES) MAY I SEEK FOR CONSTRUCTIVELY DISMISSED?
You can get severance from your employer as a relief from constructive dismissal. You may also have a claim for compensation in the form of aggravated damages, punitive damages, or damages from a breach of statutes such as the Human Rights Code. The amount of severance you may be entitled to receive will be relying on several factors, such as the contents of your employment contract, your age, your length of service, your position at the time of dismissal, and the availability of similar jobs in the market.
HOW TO MAKE A CLAIM FOR CONSTRUCTIVE DISMISSAL
You can file your claim two ways,
- through the Ministry of Labour, which enforces the Employment Standards Act, or
- through the courts, which implement the common law, which is the law that judges make.
HOW DOES CONSTRUCTIVE DISMISSAL WORK DURING COVID-19?
The government of Ontario made an emergency order that changed the rules for constructive dismissal due to COVID-19. As of March 21, 2020, you cannot claim constructive dismissal based on the Employment Standards Act for temporary cuts to your pay or hours of work because of COVID-19. You are said to be on a “deemed emergency leave.” These changes will last until January 3, 2021.
TIPS ON HOW TO BUILD YOUR CASE
- Put everything in writing: When you reject a substantial change to your employment contract, do not only verbally tell human resources. Oral evidence is far less compelling.
- Take contemporaneous notes: Whenever something relevant occurs, write it down and document the time and place it occurred. Do not wait till the end of the week to write down all the occurrences of that week. If you take notes right after the event has occurred and is fresh in your head, those notes will be more believable and effective in boosting your case.
- Contact an Employment Lawyer: An employment lawyer can assist you in taking the necessary steps. Trying to build a case for constructive dismissal with an Employment lawyer still has risk. Doing it without the assistance of an Employment lawyer is extremely risky.
- Get moving: The number one mistake people make is they drag their feet. An employer will fundamentally change their employment contract, and the employee will not do anything for a variety of reasons. By doing nothing, you risk being found to have consented to the change. You typically will have more latitude in terms of speed in which you need to respond to a change in less obvious situations. An employee who has their pay reduced by 35% will typically have a concise window of time to answer. By contrast, an employee who is told they no longer report to the VP of Sales but the Director of Sales may have a bit longer to respond to the change.
Contact Us!
If you have been wrongfully terminated, contact an experienced employment lawyer to help get the justice and compensation you deserve. Employment law is complex, and it can be difficult to navigate on your own. A qualified lawyer will know the ins and outs of the system and how best to represent your case. Don’t let your employer get away with wrongful termination- call Tailor Law today for a free consultation.