We regularly speak with individuals who require advice as to whether they have been “constructively dismissed.” Constructive dismissal is a legal term used to describe conduct, or requirements made of you, which are so at odds with your job that it amounts to a fundamental breach of your employment contract. This breach allows you to act as though you have been fired and seek damages.
Constructive dismissal can apply to a number of different “unilateral and fundamental changes” to your employment contract. It is generally accepted that it may result in any of the following situations:
- A change in overall remuneration: Example — a significant decrease in salary or a removal of benefit entitlement.
- A change in job content: Example — loss of all your supervisory responsibility.
- A change in status: Example — your title is changed from Chief Financial Officer to Office Administrator, and you are required to report to a new person in your former role.
- A change in work location: Example — you have been working at the office in Guelph for 19 years, and you are suddenly relocated to Owen Sound.
- A change in work environment: Example —your new supervisor repeatedly scolds and belittles you in front of your work colleagues.
Other Things to Consider:
- Avoid Acceptance of the Change
A constructive dismissal only happens if you refuse to accept the unilateral and fundamental change to your employment. For example, if you are demoted from your managerial position, and subsequently required to report to your former position, this may amount to a constructive dismissal. However, if you work in the demoted role for a year, without informing your employer that you object to the change, you may be found to have accepted the change and it will be much harder to prove constructive dismissal.
- When to Quit/When to Stay
Before you decide that you have experienced a constructive dismissal and quit, speak to a lawyer. You have an obligation to mitigate loss of income, and this could include continuing to work with your employer. You should only quit in circumstances where an objective third person would find that continuing to work there would subject you to hostility, embarrassment or humiliation.
Ultimately, the risk is that if you quit prematurely, and later cannot successfully establish constructive dismissal, you may not receive any payments from your former employer.
- Keep Good Records
This advice applies generally, but if you feel a constructive dismissal is taking place, keep a record of any emails that discuss it, and take clear notes either during or immediately following any meetings in which it is discussed.
In the specific case of a constructive dismissal arising from a negative change to your work environment, clearly document all events that contribute to it (i.e., the dates and parties involved with the behaviour that makes your workplace intolerable).
- Act Early and Seek Advice
If you think you are subject to a constructive dismissal, speak to an employment lawyer early on and set a clear strategy before you take any action. If properly managed, a constructive dismissal can be clearly and effectively identified and you will receive the payments to which you are entitled.
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