Resigning for reasons out of your control? Here’s how to prove constructive dismissal in a case

by Stephen Dugandzic on May. 08, 2019

Employment 

Summary: Common ways Constructive Dismissal arises in the workplace, how to identify it and what to do.

Resigning for reasons out of your control? Here’s how to prove constructive dismissal in a case

Constructive dismissal, also known as “disguised dismissal” is a common scenario we see play out in our Calgary employment law practice.

Without explicitly terminating their employee, the employers conduct themselves in a way that encourages the individual to quit on their own.

After changes to their employment contract, workers feel like resigning is their only option. Based on the experiences of our clients, this is often done without true or voluntary consent. These types of changes can occur in a variety of ways. Sometimes the changes are subtle, other times they are obvious.

Perhaps a company vehicle provided to you under the terms of your employment contract was revoked, and you no longer have reliable transportation to and from work. Maybe a recent shift in company ownership has made major changes to your bonus structure, salary or benefit plan. Worse still, you may be experiencing bullying or intimidation at the hands of your boss or coworker. Does it seem like your HR department is casting a blind eye on the whole thing?

It is important to understand that if you are quitting your job because of unilateral changes to your employment agreement, or if you are in a hostile work environment, you could have grounds for constructive dismissal.

If this is the case, this article can help you identify if constructive dismissal is at play.

Any of these examples of constructive dismissal look familiar?

Changes in Powers or Duties

This is the most common type of constructive dismissal. It can play out as a change in job title, duties or responsibilities at work. When these types of changes occur, it can result in a loss of prestige and can even reflect in salary or wages. This often happens when companies undergo a major shift in management, reorganization or restructuring within the organization.

Threats

Sometimes employers won’t fire an employee outright but will make threats to dismiss or demote them instead. In some cases, this could be construed as constructive dismissal. The employee begins to feel that resigning is their best option to avoid the stress of an impending termination or the environment at work simply becomes intolerable.

Suspensions

Sometimes employees experience an unfair suspension. The uncertainty of their position following this break can cause them to seek out another job.

Reduced Hours, Pay or Benefits

When an employer makes unilateral changes, many details within the original employment contract can be affected. A reduction in hours, salary, commission, bonus structure or changes to benefits can impact an employee significantly. Often, they feel quitting and finding a new job immediately is their only option to avoid financial stress.

How can I prove constructive dismissal in a case?

When we want to prove constructive dismissal in a case, there are a few things we need to establish right away.

1. Watch out for suspicious changes to your employment agreement

First, we need to comb through the employment contract and assess the surrounding facts and circumstances to identify if the employer has made any changes without your consent, if your “consent” was obtained under duress, or whether your agreement to the changes was even legally valid and enforceable. These changes can reflect on your compensation, duties or even the physical location of your work. In these cases, the employer may have breached or otherwise substantially altered the express or implied essential terms of the original contract.

Some examples include:

  • Demotion or a change in job title
  • Reduced compensation or your employer refusing to pay you
  • Revoked benefits your employment contract says you should get
  • You’re forced work longer, shorter or substantially different hours
  • Your employer makes you work a different location

2. Examine what role management and the employer play

Another way that constructive dismissal occurs in the workplace is through the conduct of the employer or management team.

Some examples include:

  • Your employer has implied that they no longer honour the employment agreement
  • If you did not receive any support to do your job
  • The employer or management team is harassing or bullying you
  • The workplace no longer feels safe
  • Management is encouraging a toxic environment

In these scenarios, the simple threat of termination or the toxic environment created in the workplace may be enough to push the employee to resign.

Some may argue that there is a fine line between an employee resigning and constructive dismissal, but we are accustomed to identifying this type of conduct and know how to help you fight it.

A New Era of Calgary Employment Lawyers. We’re Different.

Do you suspect constructive dismissal is at play at work? Are you thinking of resigning or have you already done so? We urge you to seek the guidance of an employment lawyer to make sure you are fully protecting your rights.

Pursuing legal action can be overwhelming without proper guidance. Constructive dismissals, in particular, can be difficult to prove.  But we are here to advocate for you, the employee.

Led by founder, Stephen Dugandzic, our employment lawyers have a combined 40+ years of legal experience in workplace disputes.

Our 100% client-focused approach at our employment firm means that we only represent the employee. With empathy, compassion, and a clear understanding of Calgary's unique workforce, we do things differently.

Connect with one of our employment lawyers. Well make sure your case is not left up to chance.

At YYC Employment Law Group, we are here for you. Any time, any employment issue, and any workplace.

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