A constructive dismissal is when an employee is forced out of their job as a result of the employer’s actions and without a termination letter. For example, this can be an employer changing the nature of an employee’s duties without their consent, thus forcing the employee to either comply with a substantial alteration to the terms of their employment, or to leave. It can also be an employer knowingly cultivating a toxic work environment, or substantially demoting the employee.
Each case is unique. If you would like to learn more, and discuss what may be possible in your circumstances, contact our Toronto constructive dismissal lawyers today to schedule a no charge consultation.
What Actions by an Employer Might Constitute Constructive Dismissal?
A termination may be deemed a constructive dismissal when an employer makes substantial changes to an employee’s employment without their consent, or fails to comply with the employment contract. It often involves a situation where the employee is offered the choice to either accept the terms as dictated by their employer, or to quit. Because of this, constructive dismissal is sometimes referred to as “quitting with cause.”
Actions by an employer that may constitute constructive dismissal include:
- Making major changes to the employee’s duties, outside their contractual scope of responsibilities
- A substantial demotion
- A substantial reduction in pay
- Toxic work environment
- Substantial decrease in workload
- Substantial increase in workload
- And more
What Happens if My Employer Changes the Duties of My Job?
If your employer changes the duties of your job unilaterally - meaning, without your consent - then this could amount to constructive dismissal. If you consent to the change in duties, this may be a variation of your contract and not a constructive dismissal. In general, the employee must articulate their non-acceptance within a relatively short period following the change.
How Do I Know I’ve Been Constructively Dismissed?
If your employer makes a unilateral change to your employment and you leave your job a result, you may have been constructively dismissed. For example, your employment contract may include certain terms such as an hours requirement, or an overview of your scope of responsibilities. If your employer assigns you a substantially greater tasks, making you work overtime without your consent, this may be a violation of the employment contract.
Whether there has been a constructive dismissal is determined by objectively considering the employer’s actions and is not based on the employee’s subjective view. The employment contract is a particularly important document in this determination, as the employer’s actions will be measured against what was laid out in the agreed-upon terms of employment.
What Happens if I Keep Working While Being Constructively Dismissed?
In order to claim constructive dismissal, an employee must typically quit their job within a reasonable (usually short) amount of time after the unilateral change in their employment. If an employee stays in their position despite the changes, they may be seen as accepting them, and may therefore not be eligible to claim constructive dismissal. Each situation is unique.
What Rights Does an Employee Have to Object to a Constructive Dismissal?
An employee often has the right to refuse unilateral changes made by their employer. Whether this is a change in the employee’s duties, a demotion, an imposed relocation, or more, an employee may express their non-acceptance of this change by quitting. In some rare cases, an employee may continue to work in their place of employment while explicitly protesting the changes. However, most objections to constructive dismissal end with resignation.
When Should I Seek Legal Advice Regarding Constructive Dismissal?
You should seek legal advice regarding constructive dismissal if you have left your job because of changes your employer made to your employment, unilaterally and without your consent. An employee usually has 90 days from the moment of the change to file their complaint, which often involves resigning. If you believe you are being constructively dismissed but are still employed at the job in question, you may benefit from speaking with one of our employment lawyers to receive informed advice.
How Can an Employment Lawyer Help Me With a Constructive Dismissal Case?
An employment lawyer may be able to help you by reviewing the details of your dismissal, and consulting on your potential claim for compensation as a result. At Howie, Sacks & Henry LLP, we may analyze the details of your employment contract, ask detailed questions about your history with the employer, as well as how the conditions of your employment have changed.
If you have been constructively dismissed, you may be eligible to seek the severance pay to which you are entitled. If your constructive dismissal involves workplace harassment or discrimination, you may likewise be entitled to collect human rights or punitive damages.
How Long Does a Constructive Dismissal Case Usually Last?
Each case is different, and the length of a constructive dismissal case depends on the unique situation at hand. Contact our constructive dismissal lawyers today to discuss your case and learn what may be possible for you.
What Is an Employee’s Duty to Mitigate?
An employee has a duty to mitigate their damages, meaning they are expected to seek alternative, comparable employment either during their notice period (if formally terminated) or following a constructive dismissal.
Contact Our Constructive Dismissal Lawyers Today
If you believe you have been constructively dismissed, you may be entitled to pursue legal action in order to obtain the severance you are owed. Contact our team of constructive dismissal lawyers today for a free consultation to discuss your legal rights.
*Please be advised that the content of this article is intended as a general overview on the subject of constructive dismissal in Ontario, and should not be construed as legal advice. For legal advice, please consult with a lawyer.