Jul 13, 2020

Constructive Dismissal and Covid-19

Over the past few months, we have received many questions from concerned employees about changes to their jobs.  Some have experienced reductions in hours, others have had their pay cut, others are being asked to complete new or different tasks.

Everyone, however, has the same question.  Do I have a legal case because of these changes?

The answer, as is often the case in law, is it depends. 

What is Constructive Dismissal?

Generally, constructive dismissal is when your employer makes a significant unilateral change to your employment that shows it no longer wants to be bound by your contract.  This could include lowering your pay, a demotion, or suspension. It may also include significant changes to your job duties, or a reduction in hours.  

Constructive dismissal can also include situations where an employer’s treatment of an employee or its actions create a poisoned work environment which makes continued employment intolerable. Except for particularly egregious stand-alone incidents, a poisoned workplace is not created unless the serious wrongful behaviour is persistent or repeated.

Common Law vs Employment Standards 

The Employment Standards Act (ESA) provides for the minimum employment requirements in Ontario.  It states that an employee has been terminated if there has been a constructive dismissal.  

However, the Ontario government has recently amended the ESA to address reduced hours of work and layoffs caused by COVID-19. Among other important changes, the new ESA regulation states that a reduction in an employee’s hours of work or wages for reasons related to Covid-19 from March 1, 2020 until six weeks after the end of the State of Emergency will not be a constructive dismissal under the ESA

On its face, this new regulation takes away an employee’s right to claim constructive dismissal. 

However, there is an argument that this only removes the employee’s right to claim constructive dismissal under the ESA and not under the common law (judge-made law).  Those employees who do not have employment contracts that refer to constructive dismissal or do not have contracts with termination clauses limiting their rights to the ESA, may still be able to make a constructive dismissal claim. 

As well, even if an employee’s contract does refer to the ESA in the termination clause, they may still be able to claim constructive dismissal under the ESA if the real reason for the reduction in hours or wages was not related to Covid-19.  

Lessons Learned

  1. Constructive dismissal law is complex and that is even more true with the introduction of the new ESA regulation.
  2. It is not always legally or financially sensible to make a constructive dismissal claim.  Employees thinking about doing so, especially if the decision involves resigning should speak to an employment lawyer prior to making the decision.
  3. As always, employment contracts play a significant role in determining an employee’s rights – like the right to bring a constructive dismissal claim.  It is always a good decision and money well spent to have a lawyer review an offer letter or contract before taking a new job.

If you have any questions about constructive dismissal, employment contracts or termination, you can contact Nicole Simes and MacLeod Law Firm at 647-204-8107 or at [email protected]



Recent Posts

Paid Sick Leave? Sort of

With the numbers of COVID-19 cases rising again, especially in the GTA, many employees are asking me as a Toronto employment lawyer what happens if they become sick and they are forced to stay home for 14 days. Following the end of the Canada Emergency Response...

read more

Toronto Office

702 - 2 Bloor Street West,
Toronto, ON M4W 3E2

Barrie Office

277 - 92 Caplan Avenue,
Barrie, ON L4N 9J2

Collingwood Office

220 - 1 First Street
Collingwood, ON
L9Y 1A1



+1 (888) 640-1728


(866) 883-8445


[email protected]

Toronto Office

702 - 2 Bloor Street West, Toronto ON M4W 3E2

Barrie Office

277 - 92 Caplan Avenue, Barrie ON L4N 9J2

Collingwood Office

220 - 1 First Street, Collingwood, ON L9Y 1A1


Subscribe To Our Newsletter

Join our mailing list to receive the latest news and updates from our team.

You have Successfully Subscribed!