Constructive Dismissal

CONSTRUCTIVE DISMISSAL

CONSTRUCTIVE DISMISSAL

What Is Constructive Dismissal?

Your workplace should be a space that you enjoy. It shouldn’t feel like a chore going to work, nor should you feel helpless when you’re there. If your employer has changed your contract and created a hostile environment through these means, it can force you to leave your workplace as a result.

If you, as an employee, feel there is no other option besides leaving a workplace to deal with changes in your contract, then you’ve been constructively dismissed. In order to consider a termination as a constructive dismissal, the changes to your contract have to be made at the heart of the contract. Minor changes will not lead to consideration, as an employer is allowed to change the duties and responsibilities of an employee as they see fit.

Constructive Dismissal In Ontario

There are several options you can pursue if you think you have been constructively dismissed by your employer. These options were laid out in by the Ontario Court of Appeal in a[1] court case in 2008:

  1. Accept the changes, no matter how severe. The acceptance of these changes can be outlined through implicit insinuation, or through explicit clearcut demeanor. However, the length of time before bringing attention to your situation can become a hurdle if seeking litigation for constructive dismissal.
  2. Quit. If the changes in your contract make it impossible to work and leave you feeling helpless, then you can end your employment and claim constructive dismissal as the reason. However, this route is a very high risk.
  3. In some instances, you can let your employer know that you do not accept the changes made to your employment contract. This can occur if changes are made to your constructive dismissal compensation. In this case, if an employer fails to respond then they will be found to have implicitly accepted the employee’s argument.

Considering this, there is another option. You may be forced to stay with your employer in order to mitigate damages. Although this may seem counterintuitive because you have already sent your resignation letter, seeking re-employment is beneficial if considering legal action against your employer. The courts will look over many factors in your case. Such as:

  • Would a reasonable person accept re-employment?
  • Is it humiliating for an employee to stay under certain conditions?
  • Does the employee have to remain in a miserable and bitter workplace?

However, before doing anything make sure you seek legal consultation. Seeking legal employment counsel will allow you to see your options, and know your rights moving forward.

Constructive Dismissal In Ontario, Hostile Work Environment

Having your contract changed can create hostility and distrust between you and your employer, especially when these changes affect you negatively and leave you feeling helpless. Your workplace should not be hostile, and you should never be made to feel undervalued.

If you find yourself in a situation where you feel hopeless or that your employer has made your working conditions unrepairable then resigning may be the only option. With resignation, you sacrifice a severance pay and any other compensation that may come from your original employment agreement. With constructive dismissal, you are still entitled to a severance package, though it will not be any larger or smaller than what you’d be given upon regular termination. If you feel that resignation is the only option, remember that it isn’t a choice that should be made alone.

Before outright quitting your job and claiming constructive dismissal, be sure to seek legal counsel. Seeking legal advice can help you when moving forward. Whether it is to know your rights, lay out your options or simply seek advice,employment lawyers at Hummingbird Lawyers can help you every step of the way.

Frequently Asked Questions About Constructive Dismissal.

What is a constructive dismissal in Canada?

The Supreme Court of Canada illustrates two forms that constructive dismissal can take:

  1. A single act by the employer that violates an essential term of an employee’s employment contract.
  2. A series of actions that, when added together, show that the employer no longer intends to abide by an employment contract.

Essentially, the first form creates the need for an analysis of an employee’s contract. This arises because an employer has unilaterally made changes to an employee’s wages/compensation, workplace duties or the workplace location that was otherwise outlined in the original contract.

With the second form, an occurrence develops when an employer makes it clear that they no longer want to be bound by the employment contract they once signed. An employer’s intention can be made clear as their conduct can make it intolerable for an employee to continue at work.

These two forms basically force an employee to resign, by making major changes to their contracts and creating a hostile work environment.

Constructive Dismissal In Ontario

How long before you can claim constructive dismissal?

If your employer has created a hostile work environment by fundamentally breaching your employment contract, you may be eligible to claim constructive dismissal. In most cases, Canadian courts will acknowledge your claim if a fundamental change has been made to your contract after it was signed.
This means that if something that was once agreed upon, has now changed, your claim is valid. These fundamental changes and can include:

  • A Demotion
  • Alteration of a job description
  • Alteration of working conditions
  • Lowering wages or compensation
  • Changing work hours
  • Imposing a suspension or leave of absence without sufficient reasoning
  • Relocating an employee’s workplace without notice

Can you claim constructive dismissal after you resign?

Yes. If your workplace has become a hostile environment due to a breach of contract and you are left with no other option but to resign, you are still able to claim constructive dismissal.

This should be the worst case scenario if you need to resign before making your claim as it is very high-risk. However, if your work has become intolerable by an employer’s fundamental changes to your contract, then you are able to resign before your claim.
Of course, it can always be beneficial to stay at your place of employment to mitigate damages while making your claim; if it is possible.

Can you sue for constructive dismissal?

The answer is fully dependent on each case. If your contract has been breached, and your working conditions have become unbearable, the changes that were in breach must be the ones responsible for your resignation.

For example, if your employer has assigned you to a new workplace that was not mentioned in your employment contract and has added an unrealistic commute to your workday, that must be the reason for your claim and your lawsuit. If you continue to work under those conditions, you could be out of luck. The courts will see your continuation as acceptance and that can discredit your case.
After your employment contract has been breached, you’ve made your claim and you’ve resigned, you can sue your employer for damages incurred from constructive dismissal.
Damages can include lost wages, travel fees (if the workplace has changed) or the lack of severance package. Note: If you implicitly or explicitly accept your changed work conditions from your original contract, you can void your right to take your employer to court.

What can you receive if you are constructively dismissed?

If an employer is found to have constructively dismissed an employee, the employee is entitled to a severance package.
While there is not a mathematical formula to calculate just what is included in a package, there are a few factors that can be considered. These factors include:

  • Employee’s age
  • length of employment
  • Character of employment
  • Availability of similar employment

Ultimately, the goal is to create an individual assessment in each case. As each case is unique, additional factors may also be considered. After all, it considers the effects on an employee’s ability to find new work.

Constructive Dismissal Canada

Things To Keep In Mind About Constructive Dismissal

Always seek legal advice. It can help you see if you are able to claim constructive dismissal. While the above answers may have seemed definitive, there are many external factors that play into each unique claim.
Seeking legal advice can always help you see your next steps when moving forward with your claim. Making sure to document everything can be one of the most beneficial actions for you before seeking legal advice.

Outright quitting your job and claiming constructive dismissal is an incredibly high-risk scenario. If your workplace has become unbearable consider seeking legal advice before following through with this, as it can cost you in the long run.

Disclaimer: The above FAQ section is generalized answers and does not pertain to every case of constructive dismissal. Each case is unique, and legal advice should always be sought if considering moving forward

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References and Footnotes

  1. Wronko v. Western Inventory Service Ltd., 2008 ONCA 327 (CanLII)
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