What is Constructive Dismissal?
Constructive dismissal is when your employer unilaterally (without your consent) changes fundamental terms of your employment contract.
If you are hired for a certain position with certain terms in your agreement, then undesirable changes to your position or employment contract to a less favorable position or if some of the fundamental terms of the contract have been changed, then you may have a case for constructive dismissal.
When hired, if you were informed that your job position may be changed from time to time, then your employer has greater flexibility to change the terms of your employment contract without triggering a constructive dismissal scenario.
Conversely, if you were hired and not told that your position or job functions may change from time to time, your employer may be less at liberty to change your position without being considered to have breached the employment contract, and effectively, constructively terminated you.
What are some types of unilateral changes that may constitute Constructive Dismissal?
1. Demotion, change of responsibility or another important term of your employment agreement, and changes in Reporting Functions
If you are stripped of certain job responsibilities, experience a major change in the employment agreement, have a reduction of pay, have your schedule changed, or if employees no longer report to you, then you may be deemed to have been constructively dismissed, or fired from your original position. If the job responsibilities you were originally hired to do have changed without your consent, there is a strong possibility that you are found to have been constructively dismissed.
What if your income is still the same, but you have had a reduction in your responsibilities or employees no longer report to you?
That could be the basis for a constructive dismissal claim anyway. It is not necessary to have had a reduction in pay. If you were a manager, and still are a “manager”, but you no longer have employees reporting to you, this could also be the basis for a finding of constructive dismissal. If you used to report to the president of the company, but now have to report to the vice-president, or if you lost authority over your department, then you may be found to have been constructively dismissed.
2. Lay-offs, Forced Leaves of Absence and Suspensions
Recently, Layoffs have been found to form the basis of a constructive dismissal case if the employment agreement does not include a clause that allows for lay-offs without pay.
Leaves of absence when forced and your re-employment is not guaranteed also may trigger a constructive dismissal scenario.
Suspensions may also be found to have prompted a constructive dismissal case. The employment contract is the main source to determine what is allowed. The disciplinary policy must outline when and how an employee can be suspended.
3. Relocation of Place of Work
Being asked to relocate the place of employment from one city to another is a tricky situation. The Court will generally look at the distance and if it is reasonable acceptable for such change to have been made. The Court will also look at other terms of the new contract, such as the modified compensation, the new position, added benefits, among other terms of the employment contract.
If an employee is offered a new position and asked to relocate, depending on the factors above he may be found to have resigned if he does not accept a reasonable offer.
4. Harassment at the Workplace
If you have been suffering from harassment and bullying in such a way that it could be viewed as a way to push you out of your employment, this could be deemed a constructive dismissal. This includes racial, sexual, and hostile treatment that is apart from the possible Human Rights issues at hand, could be deemed to form the basis of a constructive dismissal claim.
Similarly, if you were asked to complete unsafe tasks at your workplace, your employer may be found to have breached safety protocols at your workplace.
If you have questions about your own case, contact us today. We can help with discussing the circumstances surrounding your potential constructive dismissal and advise on what moves to make next.
- This post is made with contributions from Sara Stephen –
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