Types of Constructive Dismissal

If you work in the province of Ontario and the company falls under its jurisdiction, you are covered under the Employment Standards Act, 2000. This Act sets minimum standards that an employer must comply with. If the employer fails to do so, you have a right to file a claim with the Ministry of Labour on line and without cost. You are protected from any consequences if you are trying to exercise your rights under the Act. If the employer tries to penalise you because of it, the officer assigned to investigate your claim may consider it a reprisal, which has serious consequences.
 
It is possible you may not agree with the officer’s decision, if so, you have a right to appeal the officer’s decision to Ontario Labour Relations Board. The Board is an independent body whose decisions are final and binding on both parties. It does not cost you money to request an appeal but you must do so within 30 days. Likewise, the employer too can file an appeal against the officer’s decision. However, it may be required to pay the Ministry any amount found to be owing to you. This amount remains with the Ministry till the Board makes a decision. The Ministry then distributes the money to parties according to the Board’s decision.
 
When the employment relationship ends, it may happen because you resigned voluntarily or find it hard to continue working under the circumstances or are fired. If you resign voluntarily, you are not entitled to anything and in most situations are not required to give notice to the employer, however, if you are fired, you may be entitled to proper notice or pay in lieu of notice unless the exception to the entitlement applies. One need not accept the explanation provided by the employer. You may also find you are unable to continue working under the circumstances and decide to resign because:
 
  1. The employer has given you ultimatum to resign or else be dismissed.
  2. You may experience harassment to the degree that further employment becomes intolerable or dangerous.
  3. There may be breach or repudiation of fundamental contract by employer.
  4. The employer intends to make changes without consent
  5. The employer makes significant changes to your contract of employment.   
 
1.                  “Resign or Else”
 
“Resign or Else” leaves little choice and is considered as the clearest type of constructive dismissal. The ultimatum to resign is given or dismissal will occur immediately or other unfavourable actions.
 
2.                  Harassment to Effect a Quit
 
Harassment, which results in a quit, is considered a forced resignation. For instance:
.     Persistent harassment whether covered under Human Rights Code or not.
.     Any action condoned by the employer of its personnel including supervisor that results in harassment. 
 
In order to prove constructive dismissal, one need not prove the employer intend to force the employee’s resignation.
 
3.                  Breach or Repudiation of Fundamental Contract by Employer
 
Following actions by the employer would result in a fundamental breach or repudiation of a contract:
.     Failure to pay wages.
.     Failure to provide – or remove the raw materials and equipment necessary to perform work.
 
           
4.                  Anticipatory breach by employer
.     The employer’s action may have demonstrated his intention to implement changes in spite of employee’s lack of consent.
.     The employee is not allowed to “jump the gun” while the negotiations are continuing.
     
5.                  Unilateral changes to the employment contract.
.     The employer makes a unilateral change without the employee’s consent.
.     The change made is significant and results in employee’s disadvantage.
.     The changes made must be important one.
.     The employee’s resignation is based on the changes made and he does so within a reasonable time in order to avoid the perception that he has accepted the changes.
.      Following factors may be considered “important” in finding of constructive dismissal:

pay;
number of hours worked;
duties and scope of responsibilities;
reporting structures so that status/prestige reduced;
perks; and
location of work.
 
The employee cannot refuse to accept a trivial change in an employment contract. If he/she does so, it could be treated as a refusal of “reasonable alternate employment”. In such a situation, the employee would not be entitled to termination and severance pay. An employment contract can specify that changes may be made from time to time. The employee is not considered constructively dismissed if changes are made as part of the contract
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This information is only provided to guide you about your entitlements under the Employment Standards Act, 2000 and should not be considered as a legal advice.

This article is provided by Rajinder K. Batra, who is a retired Employment Standards Officer with the Ministry of Labour with 15 years experience in these matters.

If you have any questions regarding your employment, please contact the writer by e-mail at esaconsulting@hotmail.com

If you don’t have access to e-mail; you can fax your question at (905) 331-1805.

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