Constructive dismissal is a very unfortunate by-product of an employment relationship gone sour. It occurs when an employee is unwillingly forced into quitting their job. Workplace harassment, bullying, an unreasonable work load or a toxic work environment are all examples of situations that cause this to occur.
Our employment lawyers have exclusively represented employees for over 35 years. Without doubt, this is one of the most emotionally charged areas of employment law. It is an ugly picture of corporate culture and human relationships at their worst.
If you have been forced into resigning, you need the most experienced employment lawyer on your side. We must review your circumstances carefully to establish a case of constructive dismissal.
Here are some examples of situations that cause employment relationships to deteriorate. In turn, each one could trigger a constructive dismissal.
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Unilateral Changes to Compensation Packages
This usually causes the most dramatic rupture of employment relationships. During tough economic times, employers start looking at their largest expenses for cost savings. Often, this is payroll. Time and time again, businesses use the excuse of economic downturn to justify job layoffs or wage cuts. When they impose a reduction of 10% or more of your income, our courts consistently hold steady.
Your employer cannot unilaterally change your compensation package. If wage reductions are necessary for the survival of the business, then they have to provide you with options.
- They should offer equivalent “considerations” in exchange of the wage cuts. Examples are more vacation time, signing bonuses, reduced hours etc.
- They should also offer you an adequate severance package in case the considerations are not acceptable to you.
Revising Employment Terms for Existing Employees
This sometimes occurs when new owners take over a company with existing employees. They start announcing the “new order” and all of a sudden the terms of your employment change. This includes seniority, job descriptions, location, hours of employment, etc.
Once again, your employer cannot unilaterally change the terms of your employment. It does not matter whether the terms are part of a written contract or not.
If these changes negatively impact you, contact us. You will require legal representation to manage this situation. In order to successfully claim constructive dismissal, you must protest the change in writing within a reasonable time. Otherwise the courts may find you have implicitly accepted the change.
An experienced employment lawyer can help you maneuver through these issues strategically so you come out ahead at the end.
Returning to Work From Sick or Maternity Leave
You will be most susceptible to workplace harassment and possibly a constructive dismissal after returning to work following a medical or maternity leave. This is when some employers start comparing you to the person who filled in for you. New parents frequently require time off to care for sick infants. And they also fall ill more often from viruses their kids bring home from daycare and school.
Employees returning from an absence for illness face similar problems. Your manager may unnecessarily scrutinize you for not being fully productive and up to speed right away, especially if you returned without a prescribed gradual return or accommodation plan from your doctor. Consequently, your supervisor could demote you, subject you to an unreasonable workload or expose you to underhanded harassment. Your working environment becomes “toxic”. And this forces you to quit.
These are classic circumstances of a constructive dismissal. Employers often understand the law. However, we see this play out time and time again and almost always, it is because the deck is stacked against the employee. Some employers take full advantage of the fact that many workers do not understand their rights.
Bullying, Discrimination and Harassment
Employers who condone or engage in bullying, discrimination or workplace harassment will likely play an active role in your constructive dismissal. Victims of sexual harassment usually face the same fate. Did your situation get worse after informing your HR department of the unpleasant incident? If so, you are being targeted for dismissal. This is when you need to hire a seasoned employment lawyer to ensure the outcome falls in your favour.
Constructive Dismissal: How We Can Help
A constructive dismissal case can only be filed after you leave your job. We advise our clients to pursue this as a last resort. The reality of constructive dismissal litigation is that it can drag on. Subjective or hearsay evidence and lack of proof may work against you and the legal fees are a reality.
If you have not already quit your job, we would advise you not to until you have consulted with us. We will coach you on communicating with your employer and what to document in writing. In some cases, we may be able to resolve the problem for you.
If none of that works, we can trigger a “no cause” termination, allowing you to leave with a proper severance package in your pocket. For most employees, this works out to be cheaper, faster and less exhausting than the hassle of taking a constructive dismissal case to court.
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