A constructive dismissal occurs when an employer creates a situation in which an employee feels forced out of their job. While the employer has not formally dismissed the employee, the employer’s actions in essence, amount to a repudiation of the employment contract.
Constructive dismissal can occur if the employer imposes a fundamental change to terms or conditions of employment without the employee’s consent.
Also, a constructive dismissal may arise when the employee feels unable to continue their employment due to a poisoned work environment. This can stem from discrimination, bullying, sexual harassment, or other bad faith conduct occurring in the workplace.
Employment Relationship Considerations
Not every change to working conditions give rise to a constructive dismissal claim. Workplaces are not static environments. Workplaces change, and employers can make minor changes to the employment relationship.
If an employee does not like certain changes made by his or her employer, it does not automatically mean that they have been constructively dismissed. It is only when the change (or series of changes) is unilateral and fundamental in nature, that a constructive dismissal occurs.
Claiming Constructive Dismissal
Under common law, constructive dismissal claims are not based on the employee’s subjective feelings about the workplace situation. A constructive dismissal analysis is based on a reasonable, objective evaluation of the situation.
If an employer fails to live up to their fundamental contractual obligations, viewed objectively, the employee can resign and claim constructive dismissal damages.
If an employer decides to unilaterally change working terms and conditions, the employee should indicate that they do not accept these changes within a relatively short notice period, otherwise through the passage of time or through their silence, they may be viewed has having implicitly accepted or condoned the changes. In other words, if an employee carries on working without protest, despite fundamental changes to their job, they may be deemed to have accepted the changes.
The most common situations that trigger constructive dismissal claims include, but are not limited to::
- Reduction of an employee’s compensation or benefits
- Changes in duties or responsibilities (i.e. a demotion)
- Bullying, workplace harassment, intimidation, or other bad faith conduct
- Forced leave of absence or suspension
- Temporary layoff
- Unfair, tainted or prolonged workplace investigation;
- Unfounded or false allegations of wrongdoing
- Discrimination in the workplace
If your employer tries to make unfair changes to your working conditions or employment contract, know that you have the right to refuse.
It is important to note that the employee bears the onus of proving a constructive dismissal. To effectively demonstrate a constructive dismissal, employees should compile as much evidence as possible, including notices, emails or other communications from superiors or human resource representatives, witness statements, as well as notes on any meetings of discussion held with their employer.
Seeking legal advice from an experienced employment lawyer is the best way to get a full understanding of your employment rights and decide on the best course of action to pursue financial remedies and safeguard your career and reputation. If you believe you have been constructively dismissed, contact JPAK Employment Lawyers today.