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    Constructive Dismissal: The unapparent termination

    Both employees and employers alike must be aware of how changes and acts in an employment relationship can result in constructive dismissal.

    What is constructive dismissal?

    Constructive dismissal can take many forms. Among them, changes to an employee’s job title, responsibilities or salary or a toxic work environment may be considered – based on the particular facts of the case – to meet the constructive dismissal threshold. When the employer’s conduct shows an intention to no longer be bound by the terms of the employment contract, the employee has the choice of either accepting the conduct, or treating the conduct as the employer’s rejection of the contract and suing for wrongful dismissal.

    Constructive dismissal can take two forms:

    1. A single significant act of the employer, or,
    2. A series of acts that, taken together, demonstrate the employer no longer intends to be bound by the contract.

    In either case, the employee bears the burden of showing that there was a fundamental change in the employment relationship.

    Claiming constructive dismissal

    A claim for constructive dismissal can be assessed two ways. The first requires a review of the specific terms of the employment contract to determine if a change made by the employer constitutes a breach. If the change is a breach, it must have substantially altered an essential term of the contract. It must be clear that whatever change was made fundamentally altered the employment contract.

    The second way allows for constructive dismissal to be made out when, in light of all the circumstances, the employer breached the employment contract and a reasonable person would believe that the employer no longer intended to be bound by the contract. Specifically, the employee does not have to point to an individual change. Instead, the focus is on whether the employer’s course of conduct shows an intention to no longer be bound to the terms of the agreement.

    Deciding what to do next

    In determining whether an employer’s conduct amounts to a constructive dismissal, we ask whether the conduct was such that a person in the employee’s circumstances should not be expected to continue working. For both employees and employers, there are risks. For employers, they must be wary of changing elements of an employee’s contract in such a manner triggers a constructive dismissal and should weigh whether fundamentally altering employment contract is beneficial. For the employee, they are faced with the difficult choice of quitting their job and possibly being without income for the foreseeable future or continuing a working relationship that the employer has altered fundamentally.

    Constructive dismissal is a complex issue in employment law. The application of this principle will vary depending on the facts of each unique situation. For both employees and employers, it is important to get advice on constructive dismissal before making a change to an employee’s terms of engagement or quitting your job and bringing a court action. For more information, please contact Chloe Waind at 613-563-6694 or by email at [email protected].

    The content on this website is for information purposes only and is not legal advice, which cannot be given without knowing the facts of a specific situation. You should never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. The use of the website does not establish a solicitor and client relationship. If you would like to discuss your specific legal needs with us, please contact our office at 613-563-7544 and one of our lawyers will be happy to assist you.

    Posted By: Chloe Waind of Merovitz Potechin LLP

    Associate

    Chloe Waind is a litigation associate at Merovitz Potechin LLP practicing in estate and employment litigation. Chloe also confidently handles a wide variety of other civil litigation matters.

    As a self-proclaimed “people person” Chloe actively helps her clients deal with the interpersonal aspects of their files, in addition to the legal issues. She is not afraid to take a creative approach to conflict resolution and implements a variety of strategies to get her clients the best results.

    Chloe’s passion for advocacy is palpable. As a law student she and her UOttawa teammates beat 343 other Universities from around the world, taking home First Place at the prestigious Willem C. Vis International Commercial Arbitration Moot Competition in Austria, 2017. Chloe continues to develop her skills both as an advocacy coach with the UOttawa Moot Program and as a member of the Advocacy Club. Chloe has appeared before the Ontario Superior Court of Justice and Small Claims Court and has submitted written materials for the Ontario Court of Appeal. She is at ease on her feet and handles challenges tactfully.

    Before her legal studies at the University of Ottawa, Chloe earned a Bachelor of Commerce (Honours) from the University of Guelph, Majoring in Hospitality and Tourism Management. In her spare time Chloe enjoys cooking for her friends and family, pursuing fitness both indoors and out, and travelling to new places.

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