The traditional firing where the employee is marched into a meeting with his or her supervisor and a human resources manager and then handed a letter informing them of the termination of their employment is not the only way that one can be terminated. Our law now firmly recognizes the legal concept of constructive dismissal.
Constructive Dismissal is a dismissal which arises not by an affirmative act by the employer as described above but through acts and omissions on their part which may entitle an employee in law to consider their employment to have been terminated by those acts and to walk away from the employment relationship.
Unreasonable Demotion:
Typical fact-scenarios for a constructive dismissal include the unreasonable demotion of an employee. For example, the employee is employed as the Vice President, Marketing. He or she receives an annual salary of $250,000 plus a bonus based on company performance which historically has placed them in the range of $300,000 to $375,000 of annual monetary compensation. One day management decides that this employee will now report to his subordinate, the Director of Local Marketing and will be denied the bonus portion of their compensation. Courts have consistently found this fact-scenario to constitute constructive dismissal. As such, the employee is entitled in law to refuse the demotion and to commence legal action against their employer based on a theory of recovery of constructive dismissal. The damages available to the employee are the same as if the employer conducted the traditional dismissal.
Changes in Compensation
and Benefits:
Another change to the employment relationship which our court's have recognized as constituting constructive dismissal is where the employer makes significant and unreasonable changes to the employees compensation or benefits. Typically speaking an employee whose contract of employment provided them with an annual salary of $150,000 a year would be entitled to consider his or her contract of employment at an end were the employer to unilaterally decide to decrease the employee's compensation.
Failure to Provide a Safe
Work Environment and to
Follow Published Policies:
At common law an employer has a duty to provide its employees with a safe work environment. Under our human rights statutes employers have a duty to provide workplaces free of discrimination and harassment. The two sources of legal obligations are the rationale why many employers pass workplace polices and manuals delineating the employee's rights and how they are to be enforced and respected in their workplaces. Many a job seeker places reliance on these published policies and manuals in their decision to both join the employer and to remain in their employment. These policies provide employees who have traditionally been subject to employment discrimination and harassment with a significant form of security.
An employee who is the victim of workplace bullying, harassment or other forms of discrimination who complains, makes reasonable efforts to apply the employer's published policies in these areas and receives no protection from the employer will have a compelling case of constructive dismissal. The strength of that employee's case substantially increases where the bullying, harassment or discrimination adversely impacts the employee's health and well-being.
"Shoddy" Workplace
Investigations:
The increased importance of the obligation to provide harassment free workplaces in today's workplaces has brought with it a corresponding duty on employers to treat employees accused of such infractions fairly. Once again the employer's published polices on these issues often provide employees so accused with certain fundamental rights which are articulated in such policies. The right to a fair and impartial investigation is one which comes to mind. An employee who is so accused and is denied the basic application of the employer's own stated policies with respect to how these matters will be investigated will also have a compelling case of constructive dismissal. Again, the strength of that employee's case increases substantially where the "shoddy investigation" and the failure to follow the employer's own polices adversely impacts the employee's health and well-being.
Relocation of
Workplace:
Relocation of the workplace is yet another change in the terms of employment which may entitle an employee to consider their employment to have been constructively terminated. Of all of the grounds upon which an employee can ground a claim of constructive dismissal this one is easily the most challenging one upon which to base liability. The court will evaluate the employee's claim to turn down the relocation on all of the facts and circumstances.
Seek legal advice:
Claims of this nature are not cut and dry. They involve the consideration and application of laws which are in a state of constant flux. They also often involve questions of law which may go beyond the scope of employment law.
Employees who find themselves in situations like any of the one's noted above would be well served to seek out a legal opinion.
About the author:
E.J. Guiste holds a degree in Industrial Relations from Montreal's McGill University. He completed part of his Articles of Clerkship with the Ontario Labour Relations Board and was employed as an Employment Standards Officer with the Ontario Ministry of Labour. Employment law and human rights represents a major part of his work as a lawyer. Tel. (416) 364-8908 - E mail: ejguiste@yahoo.com
Constructive Dismissal is a dismissal which arises not by an affirmative act by the employer as described above but through acts and omissions on their part which may entitle an employee in law to consider their employment to have been terminated by those acts and to walk away from the employment relationship.
Unreasonable Demotion:
Typical fact-scenarios for a constructive dismissal include the unreasonable demotion of an employee. For example, the employee is employed as the Vice President, Marketing. He or she receives an annual salary of $250,000 plus a bonus based on company performance which historically has placed them in the range of $300,000 to $375,000 of annual monetary compensation. One day management decides that this employee will now report to his subordinate, the Director of Local Marketing and will be denied the bonus portion of their compensation. Courts have consistently found this fact-scenario to constitute constructive dismissal. As such, the employee is entitled in law to refuse the demotion and to commence legal action against their employer based on a theory of recovery of constructive dismissal. The damages available to the employee are the same as if the employer conducted the traditional dismissal.
Changes in Compensation
and Benefits:
Another change to the employment relationship which our court's have recognized as constituting constructive dismissal is where the employer makes significant and unreasonable changes to the employees compensation or benefits. Typically speaking an employee whose contract of employment provided them with an annual salary of $150,000 a year would be entitled to consider his or her contract of employment at an end were the employer to unilaterally decide to decrease the employee's compensation.
Failure to Provide a Safe
Work Environment and to
Follow Published Policies:
At common law an employer has a duty to provide its employees with a safe work environment. Under our human rights statutes employers have a duty to provide workplaces free of discrimination and harassment. The two sources of legal obligations are the rationale why many employers pass workplace polices and manuals delineating the employee's rights and how they are to be enforced and respected in their workplaces. Many a job seeker places reliance on these published policies and manuals in their decision to both join the employer and to remain in their employment. These policies provide employees who have traditionally been subject to employment discrimination and harassment with a significant form of security.
An employee who is the victim of workplace bullying, harassment or other forms of discrimination who complains, makes reasonable efforts to apply the employer's published policies in these areas and receives no protection from the employer will have a compelling case of constructive dismissal. The strength of that employee's case substantially increases where the bullying, harassment or discrimination adversely impacts the employee's health and well-being.
"Shoddy" Workplace
Investigations:
The increased importance of the obligation to provide harassment free workplaces in today's workplaces has brought with it a corresponding duty on employers to treat employees accused of such infractions fairly. Once again the employer's published polices on these issues often provide employees so accused with certain fundamental rights which are articulated in such policies. The right to a fair and impartial investigation is one which comes to mind. An employee who is so accused and is denied the basic application of the employer's own stated policies with respect to how these matters will be investigated will also have a compelling case of constructive dismissal. Again, the strength of that employee's case increases substantially where the "shoddy investigation" and the failure to follow the employer's own polices adversely impacts the employee's health and well-being.
Relocation of
Workplace:
Relocation of the workplace is yet another change in the terms of employment which may entitle an employee to consider their employment to have been constructively terminated. Of all of the grounds upon which an employee can ground a claim of constructive dismissal this one is easily the most challenging one upon which to base liability. The court will evaluate the employee's claim to turn down the relocation on all of the facts and circumstances.
Seek legal advice:
Claims of this nature are not cut and dry. They involve the consideration and application of laws which are in a state of constant flux. They also often involve questions of law which may go beyond the scope of employment law.
Employees who find themselves in situations like any of the one's noted above would be well served to seek out a legal opinion.
About the author:
E.J. Guiste holds a degree in Industrial Relations from Montreal's McGill University. He completed part of his Articles of Clerkship with the Ontario Labour Relations Board and was employed as an Employment Standards Officer with the Ontario Ministry of Labour. Employment law and human rights represents a major part of his work as a lawyer. Tel. (416) 364-8908 - E mail: ejguiste@yahoo.com
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