Common questions regarding constructive dismissal

What is the Employment Standards Act?
 
The Employment Standards Act is the law that contains basic rules about employing people and working. Both employees and employers have rights and
responsibilities under the Act.
 
Does the Act cover all employees in Ontario?
 
Most employees are covered by the provincial legislation. However, employees working in industries that fall under Federal jurisdiction, such as, Post office, Banks, Railways, Radio stations, Airlines, Television stations etc. are not covered. 
 
If you are member of the trade union and your contract of employment is governed by the collective agreement, you may not be covered by the Act.
 
If you are currently employed with the company, you may be able to file a claim with a request that your name not be disclosed. The Act protects you when you are exercising your rights under it.
 
Constructive dismissal is not defined in the Act per se; however, employee quit is accepted in the constructive dismissal. Its concept is relevant when determining employee’s entitlement for:
 
.           notice of termination or pay in lieu of notice and
.           severance pay entitlements
 
Does an employee have to quit immediately?
 
The simple answer is no. Employees are permitted a reasonable “try-out” period after a unilateral change before they are considered to have accepted the changes. It is helpful if the employee makes it clear that he or she is working “protest” or on a “trial basis”. Failure to do so, does not effect the entitlement.
 
Does the employee actually have to quit?
 
Yes. It is the basis on which the Ministry will initiate its investigation, should you file a claim with it for constructive dismissal.
 
Following situation should help clarify dos and don’ts in constructive dismissal.
 
An employee has been employed for more than eight years with the company and may be entitled to eight-week period of notice of termination. On Friday, he is told his pay would be cut in half, effective Monday next. He decides to file a claim and continues to work for the employer due to poor job prospects. He tells the employer, “this is a constructive dismissal but since I cannot get another job, I will work for you at half pay. However, I believe that I should at least be paid my original, full wage for the next eight weeks as I am entitled to eight weeks notice”.
 
Is this correct?
 
No. By his action, he seems to be saying, “You did not give me my eight weeks notice. I am going to extract it from you. I am going to work my notice period at half wages and then file a claim for the difference.” Such an approach is not recommended. Why would he continue to work when he could “quit”, undertake a job search and claim eight weeks of wages for being constructively dismissed?
 
In spite of poor job prospects, he would be free to look for a job rather than wait eight weeks and then start job search.
 
The employer has the right to change employee’s contract of employment but is required to provide proper notice before implementing the changes. The employee has the right not to accept changes made without his or her consent. If the changes are significant, he or she may wish to file a claim for termination pay.  
 
If you or the employer disagrees with the investigating officer’s decision, both parties have a right to appeal to Ontario Labour Relations Board within 30 days of the officer’s decision. The Board appoints a referee to hear the appeal. It does not cost the employee to request an appeal but the employer may be required to deposit monies in trust with the Ministry of Labour if it is found to be owing. The referee decision is final and binding on both parties.    
 
In the past, the Ministry was very aggressive in defending the rights of an employee and would send a legal counsel to represent the employee at the Board’s hearing to deal with the matter. It rarely does so now. Obviously, the employer has advantage over the employee in these circumstances.
 
The question arises, should the employee also engage the services of a professional? It is my view, employee’s may not engage such services at the officer’s level hearing but may do so at the referee level hearing, particularly, if the issues are complex.
 
It is important that if a hearing has been scheduled, the employee must attend such a hearing to present evidence to support its position or to contest the employer’s evidence, otherwise, the officer or the referee may rely on the evidence of the employer to render a decision.   
 
This information is provided for guidance only 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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