Constructive Dismissal
Sometimes, an employer decides to make major changes to an employee’s job, without approval. When such changes are significant enough, and negatively impact an employee, there may be grounds for a claim of constructive dismissal in Ontario.
However, under Ontario employment law, not every change to an employee’s work will amount to a constructive dismissal by the employer. In fact, it can often often be difficult for an employee to prove a constructive dismissal case against their employer. For this reason, it is very important for employees to get advice from an experienced employment lawyer to deal with significant changes to their job.
What is a Constructive Dismissal in Ontario?
Constructive dismissal in Ontario occurs when an employer makes a significant change to an employee’s job without their consent, and they resign in protest (involuntary resignation). law typically treats the resignation as a termination.
What are Some Examples of Constructive Dismissal?
Some common examples of constructive dismissal can include significant changes in the following aspects:
- reduction in your compensation (salary, wages, bonus, commission, and so on)
- downgrading of your reporting relationship
- unpaid temporary layoff
- suspension without pay
- work relocation
- reduction in your job duties and responsibilities
- forced change in work hours or shifts
- demotion (e.g., changes in job title, prestige or managerial authority)
- workplace harassment, discrimination or a toxic workplace (e.g., bullying)
What Job Changes can Employers Make that Not Result in Constructive Dismissal?
To be considered a constructive dismissal, the negative change to the terms and conditions of employment must be significant. As such, relatively minor changes will often not trigger a constructive dismissal claim, since under common law, employers have the right to make reasonable changes to an employee’s job duties and responsibilities in order to properly manage a business and adapt to changing economic conditions.
Generally, under Ontario employment law, employers can make changes to an employee’s terms and conditions of employment under the following scenarios:
- Employment Contract: with the employee’s prior written consent, often found in an enforceable employment contract.
- Mutual Agreement: an employee provides express consent (typically in writing) to job changes that are discussed and agreed upon before being they are implemented during the course of employment.
- Minor Adjustments: even without express written consent, an employer may be able to make minor changes to an employee’s job title or responsibilities as they do not result in a significant change to the employee’s overall terms and conditions of employment, such as to their work schedule, income, job tasks, or reporting relationships.
Difference between Constructive Dismissal and Wrongful Dismissal
Unlike a wrongful dismissal, a constructive dismissal involves the employee “pulling the trigger” to end the employment relationship because they refuse to accept significant, unilateral changes to their job. In other words, the employee argues they were essentially forced to resign involuntarily. As a result, a constructive dismissal is not as straightforward as a wrongful dismissal. By contrast, wrongful dismissal occurs when the employer formally ends the employment relationship, such in a termination for cause or termination without cause, which involve the employer providing the employee with a termination letter in a severance package.
The Risk with Constructive Dismissal in Ontario
In Ontario, a constructive dismissal claim is risky because, unlike a wrongful dismissal claim, the employee has the legal requirement to prove they were constructively dismissed as a result of the changes to their job. Otherwise, an employee who resigns from their job and cannot prove a constructive dismissal will be found to have voluntarily resigned from his or her employment, and will not be entitled to a severance package. Likewise, if the employee loses a constructive dismissal claim in court, the employee may be required to pay the employer its legal costs.
Given the inherent risks, an employee should not quit and claim constructive dismissal without first receiving professional advice from a constructive dismissal lawyer in Ontario. There may be other, less risky, options available to the employee to protect his or her rights and interests, such as a severance package negotiation.
How Should Employees Respond to Major Changes to their Job?
If an employee is experiencing significant changes to their job, it is crucial to respond proactively and professionally. Otherwise, if an employee accepts or otherwise stays silent about a negative change to their job, they may be seen to have “condoned” or “acquiesced” to the job change, thereby losing the right to claim constructive dismissal and providing the employer with implied consent to make further changes in the future at its own discretion.
When faced with an employer seeking to unilaterally make significant job changes, employees may consider the following steps to protect their rights and interests involving a constructive dismissal:
- Seek Legal Advice before Resigning: before making a rushed decision to resign in the heat of the moment, employees should always seek guidance from an constructive dismissal lawyer to understand their options, as it could impact the employee’s ability to receive compensation, such as a severance package. At Bune Law, our experienced constructive dismissal lawyer has successfully navigated many constructive dismissal claims in Ontario, soundly guiding clients through every step of the process.
- Review Your Employment Contract: look over your employment contract for any enforceable provisions that can allow your employer to make the changes to your job, as this could impact your legal rights to pursue a constructive dismissal claim.
- Express Your Concerns: after obtaining an employment lawyer’s advice, it is often best to communicate your concerns to your employer in a clearly and respectful manner in writing, such as an objection to significant changes being discussed to you job.
- Document Everything: keep a detailed record of all communications and incidents involving proposed changes to your job to which you object, as these are often crucial in being able to mount a successful constructive dismissal claim or negotiate a fair severance package.
Contact Bune Law
If you are an employee in Ontario who believes you were constructively dismissed, or are concerned about changes to your employment, contact Bune Law today for a consultation with a Toronto constructive dismissal lawyer. Bune Law will review your situation, discuss your options and the strength of your case, and help you devise an appropriate strategy.