BUILDING A SOLID CONSTRUCTIVE DISMISSAL CASE:
AN ESSENTIAL GUIDE FOR TORONTO EMPLOYEES
Constructive dismissal is a term that may send shivers down the spine of any employee. You might love your job, be dedicated to your career and then suddenly find yourself in a situation where your employer’s actions have forced you to resign. But what exactly is constructive dismissal, and more importantly, how do you build a solid case if you believe you have been constructively dismissed?
In the complex world of employment law, constructive dismissal stands out as a particularly nuanced and often misunderstood concept. This blog post will serve as a guide walking you through the essentials of building a solid constructive dismissal case, providing you with the knowledge to protect your rights and navigate this challenging situation.
What is Constructive Dismissal?
Constructive dismissal occurs when an employee resigns due to their employer’s actions that have fundamentally altered their employment conditions, making the work environment intolerable and/or significantly different from what was originally agreed upon. In other words, the employer’s actions demonstrate an intention to no longer be bound by the original employment agreement. Although it is the employee who resigns, this situation is treated in law as if the employer terminated said employee’s employment.
Think of it this way: you didn’t quit; you were pushed out.
How can you Identify the Signs of Constructive Dismissal?
The key to building a strong constructive dismissal case is to act fast. To successfully claim constructive dismissal, it is imperative to recognize the common indicators of same, which include:
- A Significant Reduction in Salary or Benefits:
- A substantial pay cut (generally of 17% or more), loss of bonuses, or significant reduction in benefits
- Demotion:
- A demotion to a lower position with less responsibility and authority
- Drastic Change in Job Duties:
- A radical alteration of your job duties, especially if it involves a significant decrease or increase in responsibility, skill level required, or prestige
- Hostile Work Environment:
- Persistent harassment, bullying or discrimination that creates an intolerable and/or poisoned work environment
- Forced Relocation:
- Requiring you to relocate to a different city or province without reasonable notice or compensation
- Suspension Without Pay (Unless Justified):
- A suspension without pay, particularly if it is not for a legitimate disciplinary reason, may be grounds for constructive dismissal
- Employer Repudiation of the Employment Contract:
- When an employer shows they are no longer following the express terms of the employment contract
It is important to keep in mind that not all workplace changes will constitute constructive dismissal. There must be a unilateral and substantive alteration of the fundamental terms of your employment.
Steps to Building Your Case:
(1) Document Everything:
This is absolutely crucial. You need to ensure to keep detailed records of all unilateral changes to your employment, including dates, times, specific details of the changes, and how they impacted you. Make sure to save emails, memos, performance reviews, and any other relevant documents. If conversations occurred, write down what was said, who was present, and the date of the communication.
(2) Object in Writing (If Possible):
As soon as possible after the change is implemented, you must ensure to clearly communicate your objection to said change in writing (via email works just fine). State that you do not accept the new terms of employment and that you believe the change(s) constitute(s) a breach of your employment agreement. It is important to be polite but firm.
(3) Seek Legal Advice Immediately:
Don’t wait! Consult with an experienced employment lawyer as soon as you suspect constructive dismissal. Our team of experienced lawyers can assess the strength of your case, advise on the best course of action, help you develop a strategy and help you understand your rights and potential entitlements to compensation.
(4) Consider Your Options Carefully:
Your lawyer will help you evaluate your options, which might include:
- Resigning and Claiming Constructive Dismissal
- This is the most common approach wherein you resign and then pursue a claim for wrongful dismissal damages.
- Negotiating a Severance Package
- Your lawyer can assist with negotiating a mutual separation agreement and severance package with your employer.
(5) Understand the “Reasonable Time” Requirement:
As mentioned earlier, you must resign within a reasonable time after the change to ensure you are not seen as agreeing or acquiescing to said change. What is reasonable will depends on the circumstances, but it is generally best to act quickly.
(6) Avoid Accepting a New Contract:
Be very cautious about signing any new employment contracts or agreements after the change. Always ensure to have any documents reviewed by your lawyer before signing.
(7) Be Mindful of Your Conduct:
While still employed, continue to perform your job duties to the best of your ability. Avoid any behavior that could be construed as insubordination, incivility or poor performance.
(8) Gather Evidence of Damages:
In addition to proving constructive dismissal, you will also need to prove your damages. This includes lost wages, benefits, and other financial losses. Keep track of your job search efforts and any expenses you incur.
Legal Considerations
In constructive dismissal cases, the primary burden of proof is on the employee to establish that constructive dismissal has occurred. However, in cases involving administrative suspension, the burden may shift to the employer to show that the suspension was reasonable or justified.
It is key to note that building a constructive dismissal case does not come free of challenges, such as:
- Risk of Resignation:
Resigning from your position is a significant step and should not be taken lightly. If your claim is unsuccessful, you may find yourself without employment or compensation.
- Employer’s Defence:
Your employer may argue that the changes forming the basis of your constructive dismissal claim were within their rights or that you accepted the changes by continuing to work.
- Proving Intolerable Conditions:
Demonstrating that working conditions were so intolerable that a reasonable person would feel compelled to resign can be challenging.
- Mitigation of Damages:
Despite being constructively dismissed, you still have duty to mitigate your damages by seeking alternative employment.
Preventive Measures for Employees
To protect yourself from potential constructive dismissal situations:
- Understand Your Contract: Familiarize yourself with the terms of your employment contract, including any clauses related to changes in job duties or compensation.
- Keep Records: Maintain a personal record of your job responsibilities, achievements, and any changes to your role over time.
- Stay Informed: Keep abreast of your rights as an employee under Ontario employment law.
- Communicate Effectively: Address concerns with your employer promptly and professionally, documenting all communications.
Conclusion
Building a solid constructive dismissal case requires careful consideration, thorough documentation, and professional legal guidance. Remember, each case is unique, and the success of a constructive dismissal claim depends on the specific circumstances and evidence presented. By staying informed, documenting changes, and seeking appropriate guidance, you can navigate the complexities of constructive dismissal and work towards a fair resolution, ensuring your rights as an employee are protected.
If you believe that you have been constructively dismissed, do not hesitate to contact one of our experienced lawyers for a consultation today. We are here to help you navigate this challenging situation.