Constructive dismissal is most commonly found when the employer unilaterally changes an important term of employment or when work conditions are such that it is not reasonable to expect the employee to continue working for the employer (e.g. A significant decline in compensation or a situation of sexual harassment at work).
Some of the most common instances of constructive dismissal can be found when there is or has been:
- Sexual harassment, sexual assault;
- Workplace harassment, bullying, or physical violence at work against an employee;
- Decrease in hours of work;
- Shift change without employee approval;
- Decrease in pay, compensation or benefits without the employees consent
- A significant demotion without a change in pay or hours.
Negotiating the legal minefield of constructive dismissal requires an experienced employment lawyer. Negotiating directly with the employer could be difficult for a number of reasons:
- The employee may not feel comfortable sticking up for him or herself, or may get angry in the heat of the moment and provide ammunition for a dismissal.
- The employee might unwittingly provide evidence which would defeat a constructive dismissal claim
- The employer or a person in management may get their back up and turn against the employee due to the allegations or because the employee has not willingly agreed to the decrease in pay or hours or a physical relocation to a different job site
Again, this is an area where you are well-advised to use a lawyer to negotiate for you.
If an employee can prove a constructive dismissal, they are entitled to reasonable notice at common law, just as a wrongfully dismissed employee would be.
Sometimes, if a workplace harassment or discrimination issue has led to the constructive dismissal, the constructively dismissed employee may be entitled to an award of general, aggravated damages, bad faith or “moral” damages, or punitive damages. In some cases the actions of the employer or other employees may open the door to a concurrent human rights claim or separate tort claim (for civil assault or battery, for example).
When every attempt is made to provide helpful information in this website, you may not rely on the information above as legal advice.