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302, 15252 – 32nd Avenue | Surrey, British Columbia V3Z 0R7 Explore the legal aspects of constructive dismissal and how employees in Surrey, British Columbia can address forced resignations.
Constructive dismissal is a form of wrongful dismissal that involves an employer making significant, unilateral changes to the employee’s contract that move the employee to quit. This amounts to pushing the worker out and can lead to legal action for compensation.
Constructive dismissal refers to an employer’s unilateral changes in the terms of an employee’s position to the degree that they terminate employment. At this point, you – as the employee – have the option of either resigning or considering the employment relationship terminated. You can address the matter of your termination without pay through legal means, which may entitle you to a severance package. Constructive dismissal of the employment contract is a complex legal matter, and having an experienced Surrey employment lawyer on your side is advised.
Some of the most common signs of constructive dismissal include:
If you claim constructive dismissal based on a toxic or hostile work environment, you may be entitled to more comprehensive damages.
Constructive dismissal can be traced to a range of sources that include a toxic or hostile work environment. When this is the case, however, you can seek punitive damages that aren’t generally available. Punitive damages are designed to punish the employer’s wrongdoing in the matter – which refers to creating or allowing a toxic work environment – rather than to compensate you for your losses.
Harassment in the workplace translates to a hostile work environment and can support a constructive dismissal claim. Being harassed on the job can lead to serious consequences that leave victims emotionally scarred. Common examples of workplace harassment include all the following:
The test for identifying constructive dismissal comes from another Supreme Court of Canada case, and it is a two-pronged tool. To begin, the employer’s unilateral change must be found to have breached the specific terms of the employment contract. If such a breach is identified, it must reach the level of substantially changing an essential contractual term.
Constructive dismissal can take one of two forms that include:
Generally, the burden of establishing constructive dismissal falls to the employee who makes the claim. When an administrative suspension is in question, however, the employer is required to demonstrate that the suspension is either reasonable or justified. If you believe you may be the victim of constructive dismissal, it’s time to consult with a seasoned constructive dismissal lawyer.
Employees have important rights under the law, and employers have important responsibilities and obligations. A better understanding of these can help you bring a stronger claim.
British Columbia’s Employment Standards Act establishes minimum standards regarding employee rights and the conduct and responsibilities of employers. The employment contract plays a pivotal role in defining these rights and responsibilities. Many legal disputes related to employment arise from breached workplace policies, which include constructive dismissal claims. In order to successfully navigate the path forward, it’s always in your best interest to have a focused employment lawyer in your corner.
Employment contracts are often essential to constructive dismissal cases. The contractual terms outline the terms and conditions that apply and guide the employer’s discretion in terms of making changes to the job in question, such as in relation to work hours or work location – as discussed above. It should also be noted that the work contract can’t include terms that bypass constructive dismissal laws.
Every case of constructive dismissal is unique to the circumstances involved, and each case must be considered on its own merits. While this brand of wrongful dismissal can take many forms, whether or not it reaches the level of constructive dismissal is a matter of degree. If the changes your employer makes go beyond minor adjustments, are outside the predefined terms included in your contract or aren’t subject to your approval, it could be a constructive dismissal.
Not every change in employment terms supports constructive dismissal, but the following examples generally fit the bill.
The underlying motive of these tactics is pushing the employee to quit, and such actions constitute constructive dismissal.
In those cases where constructive dismissal is proven, employees are often entitled to compensation in the form of severance pay that’s based on the working notice or reasonable notice they were owed. The amount involved is based on factors like the following:
If the employer is ultimately determined to have acted in bad faith, the damages sought can be more expansive.
When an employer lets an employee go, they don’t need cause for doing so, but they must allow the employee adequate warning, adequate severance pay, or a combination of the two. For example, if the employee has worked for the employer for a minimum of three continuous months, they are entitled to a notice period of at least one week – or to severance pay that covers the week. The longer the employee has worked for the employer, the more notice – or severance pay – they are entitled to
To file a constructive dismissal case, you’ll generally have to resign from your job, and the burden of proof, which must reach the balance of probabilities, is on you shoulders. If you fail to meet this standard, your resignation won’t be classified as constructive dismissal, and you won’t be entitled to severance or termination pay.
If you believe you were wrongfully terminated via constructive dismissal, there are several important steps you should take, including:
It’s difficult to overstate the importance of having a trusted employment lawyer on your side in a constructive dismissal claim. Your skilled lawyer will help to ensure that you avoid the mistakes that employees in your difficult position tend to make – in addition to ably taking on all the following primary tasks:
Constructive dismissal is a specific form of wrongful dismissal. If you have been constructively dismissed, your employer’s unilateral changes to the terms of your employment pushed you out of your job. Wrongful dismissal, on the other hand, refers to a range of dismissal practices that are not acceptable under Canadian law.
Wrongful dismissal is a broad term that covers an employer’s explicit termination of employment –whether for cause or not. While employers have the right to end employment at their own discretion, they must follow careful legal guidelines – or entitlements under the law – in the process. These include providing adequate warning, adequate severance pay, or a combination of the two.
As noted, constructive dismissal laws are guided by past court rulings. In Farber v. Royal Trust Co., the court broadened the scope of constructive dismissal with the determination that changes to key elements of an employment contract can amount to constructive dismissal. The ruling in this case emphasizes the critical nature of mutual consent in relation to altered contractual terms.
In Potter v. New Brunswick Legal Aid Services Commission, a two-pronged test for identifying constructive dismissal was introduced. The first step is assessing whether the employer’s actions breached the employment contract. From here, the court must determine whether a reasonable person – under the same circumstances – would find that the contract’s essential terms were substantially changed.
A primary element of this legal background is the matter of reasonableness in relation to both the employer’s changes and the employee’s reaction to them. In other words, were the changes made by the employer reasonable in scope, and was the employee reasonable in their assessment of constructive dismissal?
There are several important legal hurdles to proving constructive dismissal that you should be aware of. As the employee, the burden of proving the constructive dismissal lies with you, and if you simply accept whatever changes your employer makes, it can be interpreted as you agree to the new, objectionable terms. For your claim of constructive dismissal to hold, the change must be unilateral – or one-sided – which means you weren’t in agreement on the matter.
Additional risk factors include failing to consult with an accomplished employment lawyer early in the process, quitting your job before carefully assessing the situation, and waiting to see what happens without taking action. Taking a proactive stance with skilled legal backing is the best path forward.
Constructive dismissal cases are more likely to go to court than most other forms of wrongful dismissal because the matter of whether or not you were wrongfully dismissed in the first place is in question. This makes it important to bring your strongest case, and each of the following can help:
Legislative actions continue to shape the landscape of employment law, including the following recent developments;
Robert Doran at Doran Law is a practiced Surrey constructive dismissal lawyer who is well-equipped to help guide your case to an optimal outcome that bolsters your rights and supports your rightful compensation. To learn more, please contact or call us at 604-542-9455 today.
Negotiating a fair severance package can take a considerable amount of time and shouldn’t be rushed. Consult with a dedicated employment lawyer today.
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Generally, provinces have jurisdiction over most employment and labour law cases in Canada. In extraordinary cases, however, the federal government presides.
Reputable employment lawyers throughout BC typically work on a contingency basis, which means they get a predetermined percentage of the settlement or court award – if the case is successful.
In Canada, employment law is governed by the following:
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