Many of us experience variations in our work and working conditions. However, certain changes may be significant enough to amount to constructive dismissal. This article addresses the changes to employment that are of most concern to employees.
Whatever the change, it must be fundamental or substantial to be considered constructive dismissal. The courts will look at the specific facts of the employment position in order to determine whether you have been constructively dismissed. It is up to the employee to prove that the change was significant enough that it amounted to a dismissal.
Demotion and reduced remuneration
Not every change in job responsibilities will be a constructive dismissal. However, a combination of reduced pay and a change in duties likely will. If the new position has less prestige this will be a factor taken into consideration. Likewise, if an employee is moved from a supervisory to non-supervisory position or begins reporting to an individual who used to be less superior, constructive dismissal may have occurred. Elimination of a negotiated bonus or commission arrangement has also been considered constructive dismissal where the bonus/commission was a significant part of the employee’s compensation.
Change in hours
The courts have considered significant changes in hours or shifts to be constructive dismissal. For example, where there was an explicit agreement to have certain days off, and the employer went against the agreement. Or, for example when a 15-year employee refused to accept an on-call arrangement. However, in many instances the courts will not consider a change in shifts to be constructive dismissal without other changes to the position if the employer has given reasonable notice of the change.
The courts are reluctant to find a change in location to be a fundamental change to the employment contract. If moving expenses are paid and the new position is similar to what the employee currently has, it is unlikely to be constructive dismissal. Where the courts have said the relocation was not acceptable was in moves of great distances such as Toronto to Vancouver, or where the relocation was accompanied by changes in the nature of how the job would be performed.
Hostile Working Environment
If an employer creates, or allows to develop, a working environment that is hostile or embarrassing for an employee, it may be considered that the employer no longer intends to abide by the employment contract. This includes verbal abuse or unfounded accusations of an employee and failing to treat the employee with civility, decency, respect, and dignity. Click here and here for further reading on harassment and violence at work.
If your employer has made any of the above changes to your employment, you may have a claim based on constructive dismissal. You do however, have a duty to mitigate your damages. This requires accepting a new position with comparable salary and working conditions, even if it is from the employer who just terminated your position. The only circumstance where you do not need to accept a comparable position is when the work is substantially different, demeaning, embarrassing or where the personal relationship between you and the employer are acrimonious.
If you would like to speak with an employment lawyer who has knowledge about this area of law, please contact us at [email protected] or 647-633-9894. Additionally, you are welcome to download a list of 20 questions you should ask when terminated.
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In an employment contract review, a lawyer can explain which rights you are giving up in the contract and suggest changes to benefit you.