Courts Determine If Constructive Dismissal Occurs
If you have been the victim of constructive dismissal in the workplace, it is important to act quickly and seek legal advice. Constructive dismissal is a serious claim that could impact your future career and financial security. A Toronto constructive dismissal lawyer at Achkar Law can help you understand your rights and navigate the complexities of employment law. We can also provide guidance on pursuing constructive dismissal damages, such as lost earnings, outplacement costs and general damages.
Constructive dismissal is a breach of an employment contract, but it is difficult to prove. The onus is on the employee to establish that a fundamental breach of their contract of employment has occurred, and that it was so severe that they had no choice but to resign as a result.
To be considered a constructive dismissal, the employer must change one or more of the terms and conditions that are either explicitly agreed upon in the contract or implied as essential to the job. This could include changes to critical responsibilities, significant reductions in pay or benefits, or the creation of an intolerable work environment. These changes must be made without the employee’s consent.
The courts look at the change from both the subjective and objective perspectives. The first branch of the test considers whether the change is so significant that it amounts to a repudiation of the contract. The second branch looks at whether the employer had no reasonable grounds for making the change, and in particular whether it was done with bad faith.
How Do Courts Determine If Constructive Dismissal Occurs?
In addition to establishing that there was a fundamental breach, the employee must show that they resigned as a direct consequence of the change. This can be a challenging task as the actions that lead to a constructive dismissal lawyer near me are often cumulative and do not seem severe or intolerable in isolation. It is therefore crucial to document all incidents, conversations and events related to the issue.
A common misconception that can be a big mistake for employees who believe they are victims of constructive dismissal is that if they have another job lined up, they should not resign. The truth is that leaving the job before you have another position can damage your reputation in the workforce and make it harder for you to find a new one. It can also make it look as if you quit in the face of poor treatment and were not able to resolve your issues in the workplace.
In a constructive dismissal case, damages can be awarded for the loss of earnings (salary, commissions, bonuses and other monetary allowances) and other contractual entitlements, such as vacation and holiday pay. In some cases, aggravated and punitive damages are available. These damages are intended to express society’s repugnance at the conduct of an employer and deter future misconduct.
An employee must usually resign within a reasonable period of time after becoming aware of the repudiatory breach to be able to claim constructive dismissal. This is because if they wait too long, their employer will be entitled to argue that they have acquiesced to the breach and should therefore be entitled to compensation.