5 Frequently Asked Questions About Constructive Dismissal

  • Simon Archer
  • June 4, 2018
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Compensation for a constructive dismissal claim in Ontario is almost guaranteed where there has been a fundamental breach of an employee’s contract. Assessment is done on a case-by-case basis since each situation is unique. The following are some of the frequently asked questions about constructive dismissal in Ontario.

1. What Does Constructive Dismissal Mean?

Constructive dismissal can take two forms. First, it can take the form of an employer’s action that violates a crucial term of an employee’s contract. Second, a constructive dismissal may also result when an employer’s series of actions, when added up, clearly demonstrate that the employer has no intentions of honouring an employment contract.

In the first instance, it’s important to analyze an employee’s contract, especially if an employer introduces new amendments without their consent. Essentially, the first form creates the need for an analysis of an employee’s contract. These changes may include salary reduction, increased duties at work that were not in the original contract, and moving to a new location.

The second scenario is set off when an employer is no longer willing to be bound by the terms of a contract they once signed. This may be evidenced by a hostile attitude by an employer that makes it impossible for an employee to continue working for the organization.

2. How Long Does a Constructive Dismissal Claim Take?

If your employment contract has been severely breached by your employer and hence creating a hostile work environment, you would be eligible for a constructive dismissal claim. Usually, a court will make its decision whether to grant or dismiss your claim after evaluating whether there have been fundamental changes to your signed contract.

Your claim for constructive dismissal will be granted if something that had earlier been agreed upon has changed. Some of the changes that may work in a successful claim include a change in the job description, a demotion, a change in working conditions, suspension without a valid reason, relocating an employee to a different workplace without giving them due notice, and a change in working hours.

3. Can I Apply for a Constructive Dismissal Claim After Resigning?

Yes. If the workplace environment becomes unbearable to the point where you are forced to resign, you can still be eligible for a constructive dismissal claim. However, this should be the last option as you will be taking a very high risk. Always take this step if you are convinced that it’s impossible to continue working under a fundamentally changed contract. If this is the case, resign and immediately lodge your claim. The best scenario, however, is to stay at your place of work as you lodge your claim.

4. Can I Sue My Employer for Constructive Dismissal?

This depends on your circumstances. If, for instance, your contract has been breached in a way that your working conditions have become unbearable, your reason for resignation must be those changes that were in breach. If you continue to work with the same conditions that were in breach, the courts could interpret this as acceptance of the breach and may discredit your case.

The best time to sue your employer for constructive dismissal damages is after you’ve made your claim and resigned as a result of the breach. Continued working after a breach may be interpreted as acceptance of the same and void your claim.

5. What Damages Can I Hope to Get If I Am Constructively Dismissed?

If a court establishes that an employer is in breach of your employment contract, it may order that you be granted a severance package. Although there is no scientific formula to calculate what the package should include, a number of issues are likely to be considered. These include the nature or character of employment, the employee’s age, length of employment, and the availability of similar employment.

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