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Have You Been Constructively Dismissed? Maybe Not.

Have You Been Constructively Dismissed? Maybe Not.

By:

Posted January 10, 2023

Constructive Dismissal is an incredibly important protection for Ontario employees – one that is often used successfully to enforce employment rights. If you ask members of the Ottawa and Toronto employment bar (and Ontario generally), they are likely to confirm that there has been an influx of people alleging Constructive Dismissal in the past decade. Whatever the cause for this increase, one thing is certain, the surge of Constructive Dismissal allegations has not necessarily equated to an increase in valid claims. Unfortunately, a regular part of any employment lawyer’s job is informing potential clients that they, in fact, have not been constructively dismissed, despite their negative experiences at work.

What is Constructive Dismissal?

Constructive Dismissal is colloquially explained as an “extra step” to a Wrongful Dismissal claim. This is because when an employee wants to claim damages for Wrongful Dismissal, but they have not yet been terminated, the employee must first prove Constructive Dismissal. Most often, to do so, said employee must voluntarily leave their employment. Then, they have the task of proving that their employer’s actions forced them to quit.

In Ontario, an employee generally has two avenues to prove Constructive Dismissal. First, they can prove that their employer’s single action equated to a fundamental breach of their original employment contract. Second, an employee can prove that an employer’s cumulative actions amounted to a fundamental breach of their original employment contract.

Examples of Constructive Dismissal in Ontario include, but are not limited, to:

  1. A sudden or gradual reduction in compensation – including benefits and/or bonuses;
  2. An improper suspension;
  3. A significant change in job role, location, and/or responsibilities – including an unwanted demotion or promotion;
  4. A sudden or gradual onset of a poisoned work environment;
  5. A major increase or decrease in workload; and,
  6. A failure to accommodate an employee – including, but not limited to, family status and disability accommodations.

Importantly, when attempting to establish any form of Constructive Dismissal, the employee must show that due to the actions of their employer, there has been a significant change in their workplace which adversely affected their original employment contract. Furthermore, the employee needs to prove that they objected to the change and/or the change was so substantial that it forced them to quit their job. Lastly, any objections to changes in workplace circumstances must usually be prompt or the employee may have been deemed to accept said changes.

What is Not Constructive Dismissal?

From my experience (and I am very open to differing opinions), the second (cumulative actions) avenue to proving Constructive Dismissal is the mechanism most often leading employees to inquire about Constructive Dismissal claims which turn out to be unjustified. Most prominent amongst these likely invalid claims would be employees equating the cumulative onset of generally difficult bosses and/or micromanagement as examples of a poisoned/toxic workplace. Employees will often attempt to bolster these claims through an allegation of harassment against their boss or another co-worker.

When such an employee approaches employment counsel with the potential claim, the lawyer often has the unfortunate job of informing the employee at issue that a generally unpleasant work environment is unlikely to be8 valid grounds for a Constructive Dismissal claim. This is especially so if the unpleasant nature of the work environment was present since the employee began working, with no sudden or cumulative onset of substantial changes. Although these circumstances may potentially lead to other avenues of legal recourse against an employer, they are commonly not enough for a successful claim of Constructive Dismissal.

Takeaway

Although sometimes difficult to prove, valid Constructive Dismissal claims in Ontario are possible, and are litigated successfully. Constructive Dismissal is a robust protection for employees when wielded properly. However, before an employee decides to quit their job and file a Constructive Dismissal claim, it is crucial that they speak to qualified employment counsel. This is to ensure that said employee does not prematurely pull the trigger on a potentially invalid claim, leaving them unemployed without the prospect of any Wrongful Dismissal damages.

This blog post was written by Filip Szadurski, a member of our Employment Law team.  He can be reached at 613-369-0382 or at filip.szadurski@mannlawyers.com.

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Filip Szadurski

Filip Szadurski

I focus my practice on Employment, Labour, and Human Rights Law, while also functioning as an active member of the firm’s Commercial Litigation and Environmental Law groups. I graduated from Osgoode Hall Law School in 2020 and was called to the Ontario Bar in 2021. I have a passion for helping employers and employees with their litigation needs at any level of court or tribunal. I also pride myself on supporting employers and executive employees with the review of their employment contracts, compensation packages, and workplace policies with the goal of avoiding unnecessary future litigation. Additionally, I have a Provincial Offences Act defence practice, assist senior management employees and employers through their workplace investigations, and am a trained workplace investigator. My investigation work includes provincially controlled workplaces subject to the Employment Standards Act and Occupational Health and Safety Act; federal domains subject to the Canada Labour Code; and, specialized agencies, such as those subject to the Police Services... Read More

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