Have you ever felt like your employer is trying to make you quit? It does happen and here at Duarte & Lesperance Professional Corporation, we have helped many workers in Ontario who have felt this way.
The official term for this is “constructive dismissal”. In this article we’re going to learn more about the concept of an employee resigning due to the employer being in breach of contract. Why is this important? If the employer’s breach is serious enough, the worker will receive severance the same as if they were let go.
DEFINING CONSTRUCTIVE DISMISSAL
We’re getting really specific here, but Constructive Dismissals are defined in section 240 of the Canada Labour Code. Unfortunately, the characteristics of a constructive dismissal can be a little convoluted. The term is used to describe situations where the employee wasn’t directly fired. Instead, the employer failed to live up to their portion of the contract of employment. This is why constructive dismissal is often referred to as “disguised dismissal” or “quitting with cause”.
WHAT IF THERE’S NO CONTRACT
That’s OK. It may not be necessary to have a physical contract, it actually happens regularly. If the employee can show that the organization didn’t live up to the obligations of the employment relationship, they’re able to justify severance. Some cases we’ve seen, for example, have the employer altering the terms and conditions of the workplace with the intent of driving the employee out. This could include:
– CHANGES IN POWERS OR DUTIES. In some cases, employers increase the amount of work or difficulty of duties. It’s very common though to see the opposite, where duties are decreased and so is the salary and/or job title.
– THREATS & SUSPENSIONS. This can be tricky, in some cases mere encouragement to resign isn’t enough evidence. However, if it’s coupled with an unfair suspension or reduction in salary, it’s much easier to prove your case.
– REDUCED HOURS, SALARY, BENEFITS ETC. If your hours, salary, or benefits are reduced this can be seen as constructive dismissal. This can include changing your employment title, taking away a company vehicle, or the organization moving to a new city.
If you’ve experienced any of these major changes, we recommend you start collecting evidence such as emails, memos, and even keeping a journal of negative incidents at work.
PROVING CONSTRUCTIVE DISMISSAL
Constructive dismissals can be very hard to prove in Ontario. The Government of Ontario does offer some help and guidelines. They recommend resigning as soon as possible after the employer initiates the change. While an actual timeline is not defined, the ESA requires the employee to “resign within a reasonable period in order for the employer’s actions to be considered a termination of employment”.
It’s also important that the employee doesn’t consent to any of the substantial changes their employer is trying to make.
RISKS OF PROVING CONSTRUCTIVE DISMISSAL
It is entirely up to the employee (and their legal counsel) to prove he or she has been constructively dismissed. There are risks involved too. If you sue your employer for constructive dismissal and lose, then you may be on the hook for your employer’s legal fees.
Due to these risks, it’s important the employee waits to speak to an organization such as Duarte & Lesperance Professional Corporation. We’ll help you identify whether or not you can prove constructive dismissal. There may also be other options that are less risky, that will help protect your rights and interests.