What is constructive dismissal?
Constructive dismissal is a legal term that means you have not formally been fired or terminated, but the negative changes that the employer has made to your job are so significant that – as a matter of law – they effectively result in the termination of your employment.
How do I know if I have been constructively dismissed?
You may have been constructively dismissed if your employer has made negative changes to the terms of your employment without your consent, such as pay, location, duties, status, responsibilities, or hours. In addition, if your employer has harassed you, treated you abusively, or made your work conditions intolerable through workplace discrimination, you may have been constructively dismissed.
Not all negative treatment constitutes constructive dismissal. It must be a fundamental negative change. A minor dock in pay, slight change in duties, or an ornery boss, generally speaking, are not sufficient to constitute constructive dismissal.
My working conditions have become intolerable, but I don’t want to lose my job.
It is common for employees in these difficult circumstances to feel like they are in a bind – should you continue to work under intolerable conditions, or take your chances on the volatile job market?
If you have been constructively dismissed, there is a third option – you may sue your employer for wrongful dismissal. Depending on the amount of severance you are entitled to, suing for wrongful dismissal might be your best option. If you have been constructively dismissed, it could end up a win-win for you – you get your severance pay and you get to leave the employer who has been treating you unfairly.
What if I keep working through a constructive dismissal?
Some employees decide to continue working, even when their work conditions become intolerable or the terms of their employment are fundamentally altered. Unfortunately, these employees may be sacrificing more than they know.
If your employer has made fundamental changes to the terms of your employment, you need to act on it promptly, or you may lose your right to sue. If you continue to work despite having been constructively dismissed, you run the risk of “condoning” the change. This means that you have accepted the fundamental changes through inaction – and lose your right to sue for constructive dismissal.
Does that mean I should quit if I think I have been constructively dismissed?
Maybe. Quitting is usually the first step in claiming constructive dismissal. But do not act on this before receiving advice from an experienced employment lawyer.
Claiming constructive dismissal is sometimes a risky proposition. You cannot sue your employer for constructive dismissal and keep your job. If you sue unsuccessfully sue for constructive dismissal, you will be left with no job, no severance, and a stack of legal fees that got you nowhere.
What can the employment lawyers at Levitt LLP do for me?
Our employment lawyers can tell you whether you have been constructively dismissed, and help you act on your constructive dismissal to recover your losses.
The constructive dismissal and wrongful dismissal employment lawyers at Levitt LLP are experts in employment law and labour law in Toronto, the GTA and across Canada. Our team of employment lawyers have handled countless claims of constructive dismissal. Our employment lawyers have the knowledge, experience and resources to help you through every step of the process.
Each situation is unique, so schedule a consultation today with one of our employment lawyers in Toronto, the GTA or across Canada to learn about your options.
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