Your boss did what?
Sep 6, 2013 / 5:00 am
At the base of many employment law issues is the underlying contract between the employee and their employer. Although sometimes written, this contract is often implied through the actions and expectations of the employee and employer. It will govern the fundamental terms of employment, including salary, responsibilities, hours of work, and basic expectations.
In most cases, this implied employment contract works and both the employee and the employer enjoy a productive, mutually beneficial relationship. However, where an employer unilaterally makes a fundamental change to an employee’s employment, it may be found that the employer has breached its contractual obligations.
In these circumstances, the employee may consider that they have been “constructively dismissed”, or that their employer, through its own conduct, terminated the employment relationship. When this happens, the employee can then claim damages from the employer as they would do in a wrongful dismissal claim. In some cases this can amount to several months of wages.
Before starting a constructive dismissal action, however, employees facing workplace change need to consider four important points:
1) Constructive dismissal is fact dependent. Constructive dismissal requires an individualized assessment, as circumstances amounting to a constructive dismissal for one person may not for another. However, some common themes which have been found to constitute constructive dismissal in the past include demotions, change in job responsibilities, a significant change in working conditions (such as discrimination and harassment) or a reduction in pay.
2) Constructive dismissal can be cumulative.
Constructive dismissal does not need to be one single event and can be an accumulation of acts. Think of an employee whose working environment becomes increasingly toxic. Over a period of months, the employee may be subject to workplace bullying or discrimination. While each individual case of harassment may not constitute constructive dismissal, as tensions mount the contract may be considered fundamentally altered.
3) Constructive dismissal is the employee’s burden to prove.
The facts of a constructive dismissal claim are often hotly contested. In fact, the employer’s first defense to a constructive dismissal claim will almost always be that the employee resigned. The employee then carries the burden of proving what was changed in their employment and why it was a fundamental breach.
4) Constructive dismissal requires the employee to leave their job.
Because an employee claiming constructive dismissal must consider that their employment has been terminated, it flows that they must leave their job. In other words, to claim constructive dismissal, the employee cannot accept the contractual changes and continue working. Compounding the initial workplace stress is now a financial stress, the stress of finding new employment and the stress of litigation. Also, if the court agrees with the employer’s version of events, the employee may find herself without a job, without income and without any compensation.
For employees who feel undermined by unilateral changes of employment, a constructive dismissal claim may be part of a larger legal strategy. However, like all litigation, a constructive dismissal claim does present risk and should only be pursued after careful reflection.
Read more Navigating the Legal Landscape articles
- Employment termination: what do I do? Dec 6
- Did he just quit? Nov 22
- Workplace bullying and harassment Sep 27
- Your boss did what? Sep 6
- Common questions on overtime Aug 9
- Fired? Factors and your severence Jul 12
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