- Have you been demoted?
- Has your salary been adjusted?
- Have your working conditions changed?
You may have a case for Constructive Dismissal. Employers can fire employees in several ways. Your boss may say, “you’re fired”. Or your boss may fire you in a much more subtle way and the law recognizes this. For example, you may have been demoted without your consent. Your salary may have been reduced. Or your boss may have taken away many of your responsibilities and duties. If your employer makes any important change in your job without your consent, it may be constructive dismissal.
An employee can be constructively dismissed without the words “you’re fired” ever being uttered. A case for constructive dismissal most often arises when an employer changes the employee’s:
- salary and benefits; or
- job description and responsibilities (including a demotion); or
- working conditions; or
- location of work (transfer to another city).
In some situations, a demotion with no change in pay can be a constructive dismissal. If an employer has set out to make it difficult for an employee to perform employment duties, a case of wrongful dismissal may arise.
Not any change in employment, however, will amount to constructive dismissal. The changes must be seen as fundamental, severe, serious, unilateral and substantial – so as to result in the employee performing a job of a different nature than s/he was previously.
Each case turns on its own facts, so it’s important that a constructive dismissal situation be carefully reviewed with a lawyer experienced in employment law.
Delay
Delay can hurt the employee who is in a situation that might amount to constructive dismissal. If the employee waits too long in such a situation, the Court may see the employee as accepting (“condoning”) the situation. However, there are valid reasons for an employee to continue to work in a constructive dismissal situation:
- the employee may be attempting to minimize his or her losses pursuant to a common law duty to “mitigate damages”;
- the employee may be acting out of financial necessity while searching for replacement employment;
- the employee may be testing the suitability of the new arrangements on a trial basis; or
- the employee may genuinely accept the new conditions as forming part of the employment contract.
The Court will not determine an employee to have condoned the employer’s wrongful conduct unless the employee genuinely consents to giving up the right to sue. The test for condonation is the intention of the employee. The Court will consider whether a reasonable person in the position of the employer believed that the employee intends, voluntarily and without coercion, to give up his or her legal right to sue and agrees to the changed terms as forming part of the employment contract?
The Courts recognize that an employee should be allowed a reasonable trial period in which to assess the suitability of working under the new terms before condonation will be found.
TALK TO US FOR HELP
If the fundamental terms of your employment have been changed without your consent, or if you have been fired or laid off, or are about to be, we can help determine if you are entitled to compensation for wrongful dismissal and the proper legal steps to recover it.
