
Wondering ‘What is Constructive Dismissal?’
Constructive Dismissal – The Meaning and Concept
Constructive dismissal occurs when an employee resigns due to their employer’s behaviour. This behaviour can create a work environment that feels hostile or intolerable, leaving the employee feeling that they have no choice but to leave their job. Common reasons include subtracting from or adding to job duties without agreement, changes to the job duties to different type of role, reduction in pay, relocation, demotion, removal of direct reports and a toxic work environment. If you believe you’ve experienced this, it’s important to understand your rights and consider taking steps to address the situation. It’s a challenging experience, but knowing your options can help you take the right course of action.
Identifying the Warning Signs of Constructive Dismissal
Several indicators may suggest you are facing constructive dismissal. These include significant alterations to your job responsibilities, an unexpected and substantial reduction in your salary, or being demoted without a valid reason. A hostile work environment, where you face ongoing harassment or discrimination, is another red flag. Other examples include a sudden relocation of your workplace without reasonable notice or unfavourable changes to your working hours. If these changes occur without your agreement, it might be grounds for a constructive dismissal claim. Recognizing these warning signs early can help you take the necessary steps to protect your rights.
The Legal Context of Constructive Dismissal in Canada
In Canada, employment laws are designed to protect employees from unfair treatment, including situations of constructive dismissal. When assessing a claim, courts look at whether the changes imposed by the employer are significant enough to breach the employment contract. They examine the circumstances to determine if these changes justify the employee’s resignation. Additionally, the courts consider whether the employer had any legitimate reasons for implementing such changes. This legal framework ensures that employees are not forced to endure unreasonable alterations to their job conditions without recourse.
Exploring Your Legal Choices When Facing Constructive Dismissal
If you believe you are experiencing constructive dismissal, taking prompt action is key. Start by carefully documenting all changes made to your job and any relevant communications with your employer. This evidence will be important in supporting your claim. Seeking advice from an employment lawyer can help clarify your legal options and determine the strength of your case.
In some instances, you may negotiate a settlement directly with your employer, which could involve financial compensation or other favourable terms. If negotiations are unsuccessful, you may opt to pursue damages through legal proceedings. Depending on the specifics of your case, reinstatement to your previous position could also be an option, although it is less common.
An experienced employment lawyer will guide you through the complexities of filing a claim, gathering necessary evidence, and presenting your case effectively. They can also advise on the potential outcomes based on similar cases and help you make informed decisions.
Understanding your rights and options under Canadian employment law can empower you to make informed choices and seek fair treatment. Consulting with a skilled lawyer ensures you are equipped to handle this challenging situation and pursue the best possible resolution for your case.
Seeking Guidance from an Employment Lawyer
Working your way through a constructive dismissal case can be challenging, which is why consulting an experienced employment lawyer is so beneficial. Howard Levitt, Senior Partner at Levitt LLP, is regarded as a top negotiator and litigator in employment law across Canada, which can be needed for handling constructive dismissal cases effectively. Levitt LLP’s team is highly regarded for their expertise, and they are recognized as the leading authors in the Lexology Legal Influencers Q2 2023 for Employment & Labour Law in Canada, highlighting their skills in areas like constructive dismissal. Their legal knowledge can be instrumental in achieving a favourable outcome. An experienced lawyer will guide you through the complexities of how to respond to your employer, filing a claim, gathering necessary evidence, and presenting your case effectively.
Potential Constructive Dismissal Case Resolutions
In cases of constructive dismissal, the potential outcomes can vary based on the specifics of the situation. Financial compensation is a common resolution where the employee may receive a settlement that reflects lost wages, benefits, and any other financial impacts resulting from the dismissal. Another possible outcome is negotiating a settlement directly with your employer, which might include favourable terms such as a reference letter, extended health benefits, or additional severance pay.
Reinstatement to your previous position can also be an option, although it is less frequently pursued due to the complexities and potential strain on the working relationship. If reinstatement is not viable, a court may award damages instead, considering factors such as the length of your employment, your position, your age and the terms of your employment contract.
In certain cases, employees may also seek additional damages for emotional distress if the circumstances of the dismissal were particularly egregious. Courts will assess whether the employer made any efforts to rectify the situation before it escalated to a claim.
It’s essential to consult with an experienced employment lawyer to understand the potential resolutions specific to your case. They can provide insight into the likely outcomes based on previous cases and guide you through the legal process to achieve the best possible result.
Safeguarding Your Rights in a Constructive Dismissal Case
To safeguard your rights effectively in a constructive dismissal case, start by documenting all instances of unfair treatment and any communications with your employer. Record changes to your employment terms and the negative impacts on your work environment. This documentation will be invaluable in supporting your claim.
Next, familiarize yourself with your rights under Canadian and provincial employment laws. Knowing the legal protections available to you can empower you to take informed steps. Consulting an experienced employment lawyer can provide clarity on the complexities involved and help you understand the nuances of your case.
In addition to legal consultation, gather any witnesses who can corroborate your experience. This can strengthen your claim by providing additional perspectives on the changes you’ve faced. Maintain copies of emails, texts, and other written communications that reflect the alterations to your job conditions.
If your workplace has a human resources department, consider discussing your concerns with them. Sometimes, internal resolution is possible, and HR may mediate to address the issues. However, if the situation remains unresolved, legal action might be your next step.
Finally, be aware of the importance of timing. Delays in taking action can affect the strength of your case. As time goes by, you will be deemed to have agreed to or accepted the change if you do not object to the change and take action. Not doing so results in the new terms becoming part of your employment leaving you with no legal remedy. Promptly seeking legal advice ensures you are on the right track to protecting your rights and seeking appropriate remedies.
Constructive Dismissal Examples
Constructive dismissal can occur in various situations where an employer unilaterally makes substantial changes to an employee’s job. Common constructive dismissal examples include a demotion without a valid reason, a considerable reduction in salary, or changes to job duties that are not agreed upon. A sudden shift in work location or hours without reasonable notice can also qualify. Additionally, a hostile work environment marked by harassment or discrimination may force an employee to resign, fitting the criteria for constructive dismissal. It’s important to recognize these scenarios early on to take appropriate action and protect your rights. Consulting an experienced employment lawyer can provide further clarity and guide you through the process.
Frequently Asked Questions About Constructive Dismissal Claims in Canada
Can I Resign and Claim Constructive Dismissal?
Yes, you can. If your employer makes significant changes to your job without your agreement, you have the right to resign and claim constructive dismissal. This type of resignation is seen as forced by the employer’s actions.
Can You Claim Constructive Dismissal Without Resigning?
Generally, a resignation is necessary to pursue a constructive dismissal claim. The resignation signals that the employment contract has been breached due to the employer’s actions. In some cases, you can work under protest preserving your rights to seek damages, but those are more rare.
How Do I Claim Constructive Dismissal?
Start by documenting all changes to your employment terms and any communications with your employer. Then, consult with an employment lawyer who can evaluate your case and guide you through the claim process.
How Long Do I Have to Claim Constructive Dismissal?
The timeframe for claiming constructive dismissal can vary depending on the specifics of your case. If you wait too long, you will be deemed to have acceped or acquiesced to the changes with no recourse. Seeking legal advice promptly is critical to ensuring you meet any deadlines.
How Much Can I Claim for Constructive Dismissal?
The amount you can claim will depend on several factors, including your length of employment, position, the terms of your employment contract, and any financial losses incurred due to the dismissal.
When Can You Claim Constructive Dismissal?
You can make a claim when significant changes to your job are made without your consent, leading you to resign. Some examples include substantial salary reduction, changes to your bonus or incentive plan, demotion, removal of responsibilities or direct reports, change in status, adding or subtracting job duties, relocation, or a hostile work environment.
What Evidence Do I Need for a Constructive Dismissal Claim?
Collect all relevant documents, including emails, memos, and any communications that show changes to your job. Witnesses who can corroborate your experiences can also strengthen your claim.
Consulting with an experienced employment lawyer will help you understand the nuances of your case and navigate the complexities of making a claim.
What to Do if You Have Been Constructively Dismissed
- Act Quickly
An employee should act promptly following a unilateral and fundamental change that has taken place at work. Delaying a response could undermine your constructive dismissal claim. If you wait too long to object to the changes, you may be deemed to have condoned or consented to the changes – meaning you accepted them, even if they were initially a breach of your contract.
Condonation can prevent you from successfully pursuing a constructive dismissal claim. To avoid this, it is important to act quickly.
- Communicate Your Objection to the Changes
To protect your rights, it is important to clearly communicate your objections to the changes to your employer in writing. This creates a documented record of your position and prevents your employer from claiming you accepted the changes.
- Seek Legal Advice as Soon as Possible
If you are experiencing a significant and unwelcome change to your employment, it is crucial to obtain legal advice. Experienced legal professionals, like those at Levitt LLP, can evaluate your situation and determine whether the changes to your employment amount to constructive dismissal – and if so, we’ll help protect your rights moving forward.
At Levitt LLP, we are dedicated to ensuring that you receive the fair treatment you deserve in the workplace. Whether it’s about constructive dismissal or any other employment-related issue, our experienced team is here to advocate for you. Contact us for a consultation and take the first step in creating your ideal contract.
Please note that this article is only to be used as general information, and it does not constitute legal advice. We encourage employees and employers to contact Levitt LLP directly to understand provincial employment contracts better and seek legal advice to their questions.