Common Questions About Constructive Dismissal

If you work in the province of Ontario and the company falls under its jurisdiction, you may be covered under the Employment Standards Act, 2000. The 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 on line with the Ministry of Labour and without cost. You are protected from any consequences if you are exercising your rights under the Act. If the employer takes any action to penalise you because of it, the officer assigned to investigate your claim may consider it a reprisal, which has serious consequences.
 
If you are covered under the collective agreement, that is, if you are a member of the union, the terms of the Act do not apply to you. It is assumed the collective agreement would be better than the terms of the Act.
 
It is possible you may not agree with the officer’s decision, if so, you have a right to appeal 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 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 for a better job or find it hard to continue working under new conditions of employment or are fired. If you resign voluntarily, you are not entitled to anything and in most situations you may not give notice, 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 wish to resign because you do not agree with the changes made to your contract of employment.
 
Some questions arise:
 
Is it necessary for the employee to resign right away?
 
No, the employee does not have to resign immediately. Employees are given the opportunity to try the changes made by the employer for a reasonable period of time before finding the employee has accepted these changes. It goes in favour of the employee if it is made clear to the employer that they are working under protest although it is not necessary in making a finding of constructive dismissal. The employee may try it out for a period equivalent to or less than his/her entitlement to notice under the Act for the simple fact that the employer can change the terms of contract by giving a proper notice.
 
Is it necessary for the employee to resign?
 
Yes. How else would the determination of constructive dismissal be made? Dismissal means the employee is no longer working for the employer. It is rare the employee would agree to any change. If the employee thinks the changes made are so fundamental that he/she cannot accept it, it has to be shown by action and that action ultimately leads to resignation. However, resignation because of small, insignificant or changes made in accordance with the terms of the contract of employment are not recognized as the basis for constructive dismissal. It has to be a significant change in order to claim constructive dismissal.
  
Under the Act, the employer can terminate the employment of an employee for any reason, all that is required, is proper notice based on the length of service. It is advisable that if the changes made are significant, like reduction of wages by say more than 10 percent, the employee if it wishes to resign, may do so immediately in order to avoid the claim by the employer that the employee has accepted the changes.
Can the employer change the conditions of Employment?
 
Yes. Generally, the employer can change the conditions of employment by giving a proper notice depending on the length of service. However, there are some exceptions such as, pregnancy and parental leaves. Again, the exceptions were discussed in the article on Reprisal. For full details, either you refer to that article or contact the writer.  
 
Can the Ministry provide advice?
 
No, the Ministry’s mandate is to provide information not advice.
 
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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