Constructive Dismissal Cases
When an employee is able to prove constructive dismissal, they are entitled to monetary compensation that typically includes notice pay and severance pay. However, this is not a simple matter and employers should be wary of the threshold that must be crossed before an employee can assert this claim. A breach of this nature can have serious consequences for the employer and is one of the most serious employment law claims to be brought by employees.
The Employment Standards Act (ESA) is the cornerstone of Ontario employment law, establishing minimum standards for most workplaces. The ESA sets critical employment terms such as hours of work, leave entitlements and termination notices. For this reason, any significant changes to these terms can be a trigger for a constructive dismissal claim. The definition of what constitutes a “substantial change” is highly fact driven and can be challenging to establish as it will depend on the specific circumstances. However, the majority of claims are based on an employer’s conduct or actions that would lead a reasonable person to conclude that their employer no longer intends to be bound by the employment contract.
A common example of this is when an employer renounces or cancels benefits, alters the reporting structure within the company hierarchy, reduces job duties, or changes the location of the workplace without express consent from the employee. This can be considered a material breach of an express term, but it is also possible to claim a constructive dismissal if the employer breaches an implied term such as the principle of trust and confidence.
What Role Do Workplace Policies Play in Constructive Dismissal Cases?
Other examples include a sudden change in working conditions that makes the job intolerable, a lack of support or training to allow an employee to perform their duties or a failure to provide a safe and healthy work environment. This can be a very difficult claim to prove, but it is possible if an employer has created a working environment that is unfavorable or stressful for the employee and makes continued employment intolerable.
Regardless of the type of claim, a constructive termination is not an automatic right and the employee must have the opportunity to use internal or external channels to resolve the situation before they can file a claim. For this reason, it is important that any issues are brought to the attention of human resources or management before they escalate to the level of a constructive dismissal case.
If you have concerns about your workplace environment, an Achkar Law lawyer can help. We can review your employment contract and ensure you are aware of your rights and obligations. We can also assist your company with workplace policy development, and ensure legal compliance with Ontario employment laws.
We can also provide severance package assistance and other redress for employees who have been affected by business disruption, layoffs or other unforeseen circumstances. For employers, we can provide regular employee training to mitigate risk and support a workplace culture of respect and fair treatment. Contact us today to discuss how we can help your organisation.