Since 2020 and the pandemic, employability in general has suffered a downward trend, with people getting laid off or having their benefits slashed in order for businesses to continue operating. While governments did step in to ensure that nothing untoward happened to the public en masse, it still wasn’t enough and now, things like temporary layoffs and constructive dismissals have become part of our common lexicon; people now have a greater awareness of such things and fortunately, know their rights and how they can ensure that they aren’t left in a financially precarious state what with mortgages, car loans, student loans and other responsibilities always looming.
In this blog post, we’ll take a look at constructive dismissal in Ontario and the constructive dismissal employment law and what you need to know about it.
Nothing good comes out of knowing the law alone. You need somebody to help guide you through to the end. By utilising our knowledge, experience and legal expertise, Dharsi Law Employment Litigation is more than capable in handling whatever case you might have for constructive dismissal in Ontario. By getting Dharsi Law on your case, you’ll be guaranteeing for yourself a better future: where the law works for you and ensures that your legal, economical rights are protected and taken care of.
Let’s start by looking at what is constructive dismissal in Ontario.
Constructive Dismissal In Ontario
Constructive dismissal might be considered by many to be overly complicated and a case-sensitive description, but the definition might help people understand the basic tenets or properties that are considered by Ontario law as constructive dismissal.
“Constructive dismissal occurs when an employer, without gaining the explicit consent of the employee, implements fundamental and significant changes to the basic terms of the employee’s contract. These unilateral changes can be anything, but specifically include job duties, workplace location, working hours and working conditions, benefits, perks and privileges and even compensation. The only course of action for said employee then is to resign from their current position and terminate the contract of employment on their behalf.”
While constructive dismissal entails in it a lot of factors and signs, which will be discussed below, let us start with understanding the two basic types of constructive dismissal, as outlined by the Ontario law governing the workplace.
Types Of Constructive Dismissal
There are two essential types of constructive dismissal, strictly from a financial viewpoint.
Monetary Constructive Dismissal
As the name implies, monetary constructive dismissal relates to the financial aspect of the employment contract, and is classified as monetary should the employer decrease the wages of an employee by more than 10 per cent, or slash down the hours of work, also by more than 10 per cent, without prior and due intimation to the employee. According to Ontario law, anything over 10 per cent will be considered a monetary constructive dismissal.
Non-monetary Constructive Dismissal
On the basis of differentiation, a non-monetary constructive dismissal is considered much more subjective, since it tends to deal with the employer’s conduct rather than the financial transactions. Should the employer’s conduct become essentially unbearable for the employee, pushing them to resign and terminate their employment contract with the employer, it will be considered as a non-monetary constructive dismissal.
Constructive dismissal entails in its certain aspects that help determine how the case will move forward. These determinants or aspects of the constructive dismissal will now be discussed to help explain it better.
Factors/ Determinants Of Constructive Dismissal
How to know that you have been a part of a constructive dismissal effort? Here are the factors or determinants that can help you make the distinction between a consented change in job description and constructive dismissal.
Salary Cuts/ Reduced Remuneration
The first and most substantial sign of constructive dismissal is a significant decrease in the remuneration received by the employee. If this cut is done without any prior intimation and without any cause (such as drop in performance or by availing unpaid leaves), the employee may be eligible to receive benefits associated with constructive dismissal.
Demoting The Employee
A sudden, unexplained demotion or reduction in the employee’s professional stature, authority level or supervisory responsibility will also be considered as part of a claim of constructive dismissal.
Relocating The Employee
Sudden relocation whose particulars do not adhere to the original relocation clause as per the employment contract will also be considered a part of or reason for a claim of constructive dismissal.
Sudden Change In Shift Hours
Shift hours are built around an employee’s routine, and suddenly changing the shift hours drastically (for instance, switching from day shift to evening or night shift) without prior intimation and without employee consent will be considered reason for the employee to claim benefits associated with constructive dismissal.
Hostile Or Toxic Work Environment
While the definition for toxic or hostile work environment may be subjective, however, certain acts like bullying, harassment, unjustified or excessive discipline and sexual harassment will be considered as toxic or hostile work environment, wherein an employee may be able to claim benefits or compensation in line with the claims against a constructive dismissal.
Increase In Workload
A significant increase in the workload of an employee that leaves them unable to look after other important matters (family, children, personal life) without prior intimation and subsequent expression of consent will be subject to the same treatment as constructive dismissal.
Unjustified Suspension
Unjustified suspension is, once again, subject to interpretation and company procedure or regulations might take precedence, but any unjustified suspension of administration both with and without pay are considered grounds for a constructive dismissal claim.
Refusal To Accommodate
Finally, a reasonable accommodation made by the employee needs to be considered and acted upon by the employer. However, should the employer not pay heed to the request to accommodate, for example, a workplace injury, this will be considered a case of constructive dismissal.
What To Do In The Case Of A Constructive Dismissal?
The first thing that needs to be done in the case of constructive dismissal is to ensure that your consent or approval of the drastic change in terms is not given to the employer. Once you have been informed of such a change, it is important to have documentation and physical evidence of three things,
- The conditions prior to the act of constructive dismissal
- Conditions levied afterwards (without employee consent)
- Employee’s refusal to accept the unilateral change in job description/ duties
These three will help make a solid argument for your case against the employer. And as an extra golden tip, consult a lawyer, preferably one specialized in employment law, who can help you navigate this complex terrain with ease and explain everything to you, helping you inch closer to success in your case for justice.
Dharsi Law: Employment Law Experts In Ontario
The law is sacred, and is drafted for the protection of the rights of the people. Should you feel like you have been constructively dismissed, the law is designed to help you get justice and to protect your financial and professional interests and rights. At Dharsi Law, our focus is on those rights and interests; legal, professional and financial rights that might have been wronged by your employer. With Dharsi Law by your side, expect nothing short of excellence in the pursuit of justice.
