In a nutshell, constructive dismissal is when an employer fundamentally changes the nature of a worker’s employment without the employee’s consent. It also occurs when, by words or actions, an employer makes it clear that they no longer wish to be bound by the terms of the employment contract.
In either scenario, if the employee quits and the employer’s actions are considered to have been a constructive dismissal, the employee is entitled to the compensation they weren’t eligible for when they left the employment.
Please note: if you are having issues with your employer and feel they are trying to get you to quit, please speak to employment lawyers in Toronto before making that decision. Constructive dismissal cases can be subjective and a judge may not agree that you were justified in your decision to leave.
What Are the Signs that I am Being Constructively Dismissed?
The following actions by an employer have been deemed in previous cases as constructive dismissal:
- A demotion that results in a reduction of your prestige, status, responsibilities, future advancements or loss of actual or perceived leadership, even if you retain the same pay.
- A substantial change in your working hours, i.e., a significant reduction or increase or the time of day you work.
- Changing your reporting functions, i.e., who reports to you and who you report to.
- Not paying your full wages, overtime or commissions.
- Reducing your pay or eliminating your benefits and perks.
- Suspending you without pay or forcing you to take a leave of absence.
The list above is not exhaustive and every case is different – a small detail can make or break a constructive dismissal case. Anytime you’re having problems at work, always speak to an employment lawyer. They will let you know your rights and provide solutions to ensure that you’re protected.
How Do I Prove I was Constructively Dismissed?
In cases alleging constructive dismissal, the test for proving it is:
- Identify a specific term in the employment contract that was breached; AND
- Decide objectively if the breach was significant enough that it fundamentally changed the employment contract – and that a reasonable employee in the same situation would also feel that they had been constructively dismissed; OR
- The employer’s actions or inactions show that they did not want the employment to continue.
What Are My Rights if I’ve Been Constructively Dismissed?
If your employer makes fundamental changes to your employment, you can:
- Accept the change.
- Inform your employer you’re willing to try out the change but you’re not giving up your right to claim constructive dismissal. After a ‘reasonable’ amount of time, you are assumed to accept the change.
- Claim constructive dismissal but continue working until you find new work to reduce your losses.
- Claim that you’ve been constructively dismissed, quit and pursue legal action.
You are not expected to stay in a workplace where you are being abused, harassed or assaulted.
Should you pursue a legal claim, if you’re successful you’ll be considered to have been wrongfully dismissed and entitled to termination pay and possibly severance pay and EI benefits.
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