What Every Employee Should Know About Constructive Dismissal

As an employment lawyer in Toronto, I am quite often asked to assist employees who believe they suffered a constructive dismissal. While this legal concept is not as well known, it is slowly gaining traction in the public mind as employees better understand their legal rights and consult with Ontario constructive dismissal lawyers. So, in this employment lawyer blog post, we discuss in detail the topic of constructive dismissal.

What is a Constructive Dismissal?

In short, a constructive dismissal refers to a legal claim by an employee that significant changes to the terms and conditions of their employment leaves them with no legitimate option other than to include that they were unofficially fired from their job. This is the opposite of a wrongful dismissal, which involves an employer actually terminating an employee’s employment by usually confirming in a written termination letter.

There are numerous cases that can result in a successful constructive dismissal claim. As a result, whether or not an employee can successfully prove they suffered a constructive dismissal depends on the facts of each case, which means it can only be determined on case-by-case assessment. In a leading case called Potter v. New Brunswick Legal Aid Services Commission, Canada’s Supreme Court reviewed the law of constructive dismissal and explained that a non-unionized employee is constructively dismissed if one of the following tests is satisfied:

Single unilateral change: (a) The employer makes a unilateral change that breaches an express or implied term of the employment contract, and (b) this breach substantially alters an essential term of employment. To determine part (b), one must ask whether a reasonable person in the same situation as the employee would have believed that an essential term of employment was substantially changed.

Series of acts: A course of conduct by the employer, rather than a single unilateral change, that shows the employer no longer intends to be bound by the employment contract.

Put simply, a constructive dismissal claim requires an employee proving their employer has acted in such a way that it resulted in a significant unilateral change to their employment without permission.

What are some examples of a constructive dismissal in Ontario Employment Law?

a demotion (changes to an employee’s job title, responsibilities, reporting structure)
significant reduction/increase in workload
significant relocation
unpaid wages, commissions or bonuses
significant reduction in compensation
workplace harassment or discrimination (e.g., toxic work environment, bullying, refusal to provide disability or childcare accommodations, etc.)
temporary layoff (here, an employer must prove it had either express or implied authority to place the employee on a temporary layoff)
administrative suspension (again, an employer must prove it had either express or implied authority to suspend the employee for administrative reasons)

It is important for employees to note that not every single change in an employee’s terms or conditions of work will be enough to result in a successful constructive dismissal claim against an employer. As such, the crucial point is that every case is different, so employees should not rely on general information they read online, or the opinion of friends or colleagues that they are experiencing constructive dismissal. Rather, employees should consult an experienced constructive dismissal lawyer in Toronto to carefully examine their specific circumstances, understand the strengths and weaknesses of their case of constructive dismissal, and most importantly, legal options moving forward.

What should I do if I Believe I Have been Constructively Dismissed?

Generally speaking, be smart, practical and strategize with the help and guidance of an experienced constructive dismissal lawyer. For example, employees who believe they have been constructively dismissed should, among other things:

consult with an experienced constructive dismissal lawyer before doing anything. Most importantly, do not quit. Otherwise, if an employee is ultimately unsuccessful in a constructive dismissal claim against their employer, a court could find that their decision to quit was unjustified, leaving them without a job or legal right to receive severance compensation from the employer. This is precisely what makes a constructive dismissal case risky – and why it is important to have an experienced constructive dismissal lawyer analyze the situation and assess whether the employee’s work conditions have changed fundamentally enough to justify a constructive dismissal claim. Lastly, simply saying or doing the wrong thing can harm an employee’s chances of proving a constructive dismissal claim, so it is extremely important for employees to be careful and only navigate their workplace dispute with the help of an experienced employment lawyer.
not accept a significant change in their job, such as a temporary layoff, paycut, relocation or demotion. Otherwise, without objecting to a significant change, employers could successfully argue that the employee accepted the change (which makes it challenging to prove constructive dismissal). To this end, even silence can sometimes amount to an acceptance (called”acquiescence”), as employees who do not protest quickly enough can be found to have accepted the changes
keep good records of the changes, issues or events you are experiencing that you believe could be constructive dismissal, including emails or letters that discuss upcoming changes in your job, or your own notes detailing the events/dates/people that have made your employment intolerable or unbearable (including workplace harassment, hostility, humiliation, embarrassment or discrimination)

What Do Employees Get if They Are Constructively Dismissed?

If employees are successful in proving a constructive dismissal claim against their employer, they would generally be entitled to receive a financial severance package (severance pay). Additionally, in some cases of workplace harassment or discrimination, employees may be entitled to receive more compensation in the form of bad faith damages, punitive damages, and so on. The specific value of a constructive dismissal severance package an employee is entitled to receive depends on various factors, including:

whether an employee has signed a legally binding employment contract limiting their severance package entitlement
the employee’s years of service working for the same employer
the type of job the employee held (including title, responsibilities, level of compensation, etc.)
the employee’s age
the availability of similar employment having regard to the experience, training, and qualifications of the employee.

Contact Constructive Dismissal Employment Lawyer in Toronto

If you are an employee who believes you have been constructively dismissed, please speak with our experienced employment lawyer in Toronto regarding your options, including negotiating your termination package to obtain maximum severance pay compensation, as well as constructive dismissal claim. It is rarely a wise decision to accept or sign a severance package without first reviewing it with an employment lawyer to understand whether it is fair, reasonable and your overall options. In some cases, it may take an hour of consultation, which will offer you peace of mind that your employer is treating your fairly, especially when it comes to the severance compensation being offered to you.

Contact us by phone 647-822-5492 or fill out the contact form to the side. Our employment lawyer in Toronto would be happy to assist in your employment law matter as quickly as possible.

Disclaimer: The content on this website and blog is not legal advice or legal opinion of any kind, and is only to provide general information. It is in no way particular to your individual case and should not be relied upon in any way. The outcome of a legal matter depends on its unique circumstances, and prior successes are not indicative of future results. No portion or use of this website or blog will establish a lawyer-client relationship with the author, this law firm or any related party. Should you require legal advice for your particular situation, please fill out the form below, or call 647-822-5492, to request an initial consultation.