Constructive Dismissal Disputes

In Ontario, every employer has the right to make changes to an employee’s duties and responsibilities, as a result of the business needs to be properly managed and adapt to changing market conditions. Employers are usually expected to provide reasonable notice of the changes to the employee’s duties and responsibilities, especially when they may amount to substantial changes. Reasonable notice is assessed on the basis of various factors such as the employee’s rank, age, and length of service with the company, etc.

Constructive dismissal occurs when an employer unilaterally alters a term otherwise essential to the employment contract or demonstrates an intention not to be bound by an essential term of the employment contract, and as a result, the employment can be deemed terminated by the courts. This is a useful tool for employees seeking relief when the substance of their role as an employee is largely altered to their dissatisfaction and without reasonable notice.

Constructive dismissal also occurs through the employer’s conduct, for example where an employee has been harassed, treated inappropriately and abusively, or experienced intolerable working conditions through workplace discrimination.

Changes Should Be Significant

Employers can make a reasonable reassignment of duties, as long as it is not significant enough to constitute a constructive dismissal. Where an employee’s job description allows for flexibility with regard to duties and responsibility, it will be harder to show that the changes constituted constructive dismissal.

The changes to the contract need to be serious & sizeable and cannot be minor. For example, such negative changes to the terms of the employment, made unilaterally by the employer without the employee’s consent, including changes to pay, location, responsibilities/duties, and working hours.

Employee Need To Act Promptly

Before making any decisions on how to proceed, it is always best to speak to an experienced employment lawyer to help provide you with the right direction. When dealing with a constructive dismissal, it is important that the employee acts on these changes promptly, to ensure that their actions are not seen as “acceptance” to the changes.

If an employee continues to report to work, without making it clear that he/she does not accept the changes to terms of employment, this can be construed as acceptance of these changes. Where an employee does not take steps to reject or oppose an amendment to the terms of employment, this may result in the employee later losing his or her right to claim constructive dismissal. Otherwise, an employee is free to end their employment and commence an action against their former employer.

Demotion

A demotion occurs where an employee’s job rank. Where an employer cannot prove that there was “just cause” for the demotion, the courts may see this as a constructive dismissal. To determine if the demotion amounts to constructive dismissal, there will be an examination of the reasons for the change.

Where an employee is offered a transfer to an alternative, but lesser position, this may still constitute a constructive dismissal. Even where the change in responsibilities occurs over a gradual period, it may constitute a constructive dismissal if there is a substantial change in the duties.

When the demotion puts the employee in a position where he or she is unable to perform the position, this may amount to constructive dismissal. Also, a significant reduction in an employee’s salary, as a result of the demotion, can constitute a constructive dismissal.

If you have experienced a change in your duties/responsibilities and have questions or concerns related to that change and the possibility of constructive dismissal, contact an employment lawyer today to discuss your options.

Law Wise employment lawyers approach constructive dismissal issues with logical and creative solutions. We have the know-how to navigate through any given constructive dismissal dispute. Each individual’s situation will be unique. To assess whether you have been constructively dismissed.

Call us at +1 647 948 7819 today!