Constructive Employee Dismissal: Legal Help

Changes in the terms of your employment

Constructive employee dismissal is akin to firing your employer. It means that you quit your employment because of your employer’s wrongful actions in changing the fundamental terms of your employment without your consent. Claims for constructive dismissal most often result when an employer changes the employee’s:

1. Working conditions or
2. Job description and responsibilities (including a demotion) or
3. Salary and benefits or
4. Location of work (transfer to another city).

If your employer sets out to make it difficult for you to perform your employment duties, this can also be wrongful employee dismissal. In some situations, a demotion with no change in pay can also be a constructive dismissal.

Changes must be fundamental and severe

Not any change in the employment 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 different job.” Each case essentially turns on its own facts, so it is important that any constructive dismissal situation be carefully reviewed with a lawyer experienced in employment law.

Avoiding Delay in Filing Suit; Reasons to Continue Work

Delay can hurt the employee who is in a situation that might amount to constructive dismissal. If the employee waits too long, 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. Some examples:

1. The employee may genuinely accept them as forming part of the employment contract
2. The employee may be acting out of financial necessity while searching for replacement employment
3. The employee may be testing the suitability of the new     arrangements on a trial basis, or
4. The employee may be attempting to minimize his or her losses pursuant to the common law duty to "mitigate damages."

The courts will not deem 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: would a reasonable person in the position of the employer believe that the employee intends, voluntarily and without coercion, to give up his or her legal right to sue and agree to the changed terms as forming part of the employment contract? The courts recognize that an employee should be allowed a reasonable trial suitability of working under the new terms before condonation will be found.

Legal Help for Constructive Dismissal Claims

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 take to recover it. Please call us at 250-352-3321 or toll free at 1-800-579-5338 to speak to Terry Napora. We look forward to helping you.