When an employment relationship ends, the resulting conflict can be emotionally trying and legally challenging. Employers require legal guidance to uphold their legal obligations and defend their actions. Employees similarly require legal counsel to advise on the terms of their dismissal and whether legal action is appropriate.
We advise clients on their options in cases of wrongful termination. We have the comprehensive business knowledge to effectively advise corporate owners on ending an employment relationship in a way that protects their interests. We are also compassionate and effective advocates for individually terminated employees who want guidance on their legal options.
Employees offered a severance package do not always have the knowledge to determine whether what they are offered is fair. Our services include review of severance packages to give employees the benefit of our legal opinion on what they may or may not be owed. This consultation can leave clients with the peace of mind of knowing their rights and options.
When an employee is forced to leave a job against their will because of their employer’s conduct, this is deemed to be constructive dismissal.
There are two ways in which a court may arrive at the conclusion that an employee has been constructively dismissed.
Option 1 – The employee must show that there has been a breach of the contract and if so, the court will ask whether at the time the breach occurred a reasonable person in the same situation would have felt that the essential terms of the employment contract were being substantially changed. A minor breach does not amount to a constructive dismissal. Whether a change will amount to a constructive dismissal will depend on the facts of the case being considered.
Option 2 – The employee is not required to point to an actual specific substantial change in compensation, work assignments etc. Instead the focus is on whether the employer behaves in a way that shows an intention to no longer be bound by the contract.
In either case, it is important to discuss risks and obligations that may exist to mitigate damages.
Just cause exists where the employee’s conduct violates an essential condition of the employment contract, breaches the faith inherent to the work relationship, or is fundamentally or directly inconsistent with the employee’s obligations to his or her employer. In such circumstances, an employer is permitted to terminate the employment relationship without further obligation to the employee. It is made out by the employer being able to demonstrate that the employee no longer intends to be bound by the employment contract. This generally occurs in instances of serious dishonesty, conflicts of interest, fraud, or other misconduct. The bar for just cause is very high and employers are wise to exercise caution when asserting it. We have significant experience in litigating and advising employers and employees on just cause cases.
Resignations are another issue that we are frequently called on to assist with. Whether an employee is looking for guidance on how much notice to give and how to give that notice or the employer is trying to determine whether or not they can act on an employee’s resignation, this is another area of the law that can be surprisingly fraught. Even in the face of an actual declaration of resignation, an employer cannot always take even the express words of a resignation at face value and must consider the surrounding circumstances. The court in Johal v. Simmons da Silva, cautioned that in the face of ambiguity or strong emotion, an employer that is acting fairly and reasonably must seek a clear understanding of the employee’s intention before accepting and acting on it blindly.