How Do I Know If I Was Constructively Dismissed?
Constructive dismissal is a complex case under the Employee Standards Act (ESA). Constructive dismissal refers to the substantial changes made to the terms of employment without the employee’s consent. Yet, employers must be able to make changes to employment in order to adapt to changing markets and demands. So what qualifies as constructive dismissal? How do you know that you fall under constructive dismissal? What is the line between minor and major changes to a contract?
Simply put, constructive dismissal refers to changes an employer makes to the nature of your work to the degree that you are either unable or unwilling to do the work, leading you to resign. The case law outlines two different branches that constitute constructive dismissal. First, if a contract (implied or explicit) was breached and was serious enough. Second, if it can be proven that an employer did not intend to be bounded by the contract.
There are several factors that can lead to these situations, including but not limited to: significant reduction in compensation, salary or wages, significant change in hours of work, demotion, intolerable working conditions due to bullying, harassment, sexual harassment or discrimination. The test that the Supreme Court of Canada upheld was if “a reasonable person is the same situation also would have felt that the essential terms of the contract were being substantially changed”. This would amount to constructive dismissal. If this is the case, an employee who has been found to have been constructively dismissed may be entitled to a severance package even if they resigned.
Determining whether an employee was constructively dismissed may be challenging. Drawing the line between minor and major changes can blur between acceptable business behaviour and constructive dismissal.
If you find yourself in one of these decisions, it is best to reach out to one of our qualified employment lawyers at SHIRTLIFF HINDS LAW. Timing can become very important in constructive dismissal cases. If you decide to quit your work due to these changes, but cannot legally prove that you were constructively dismissed, then you will not receive a severance package. Additionally, staying in a position for an extended time post changes may represent acceptance of these changes. To save yourself any doubt, it is always best to consult with our team of professional employment lawyers at SHIRTLIFF HINDS LAW to better assist in your constructive dismissal claim.
This blog post offers a general overview. The blog should not be taken as legal advice nor should the blog be used for sole legal decision making.