What is Constructive Dismissal?

While most employment terminations are usually done via a letter or in a face-to-face meeting, not all dismissals are so cut and dry. A constructive dismissal is a dismissal of an employee that arises as a function of an employer changing the terms of employment for an employee unilaterally.  Such a change can rise to the level of a constructive dismissal, entitling the employee to take the position that they have been terminated and are entitled to damages.

What is the threshold for constructive dismissal?

Not just any change to the employment relationship can result in constructive dismissal.  It is the nature of business that changes need to be made from time to time with respect to personnel and operations. However, if an employer makes a unilateral change to an employee’s pay, position, duties, hours of work or location of work, such that they fundamentally alter the employment contract terms whether express (terms contained in an actual employment contract) or implied (terms implied through action or verbal agreement) and they do so without the agreement of that employee, this can lead to the employee being able to assert that the employer has altered the employment agreement without consent.  As such, the employee is allowed to consider the employment agreement repudiated and, consequently, their employment terminated.

How Do I Know If I Have Been Constructively Dismissed?

While the test for a constructive dismissal may seem straightforward it is a very nuanced area of employment law and requires a careful consideration of the nature of your employer and the industry in which you work, the reason behind the changes made in your employment by your employer, the implication of any express or implied terms in your employment contract and the relevant case law.

Constructive Dismissals for Employees

It is never advisable to allege a constructive dismissal against your employer without first talking to an experienced employment lawyer.  What you may think is a strong case very well may not be and you could jeopardize your employment by making allegations without fully understanding your legal rights and obligations.

If you are an employee and believe you have a constructive dismissal claim contact the employment lawyers at Taylor & Blair LLP today to discuss your claim.

Constructive Dismissals for Employers

For employers, constructive dismissal claims require a careful legal analysis that should always be undertaken by an experienced lawyer and employers should not rely on Human Resource professionals for these types of claims.

We see a number of litigated cases that could have been avoided had an experienced employment lawyer been engaged at the outset. Instead, many employers let their HR department handle the issue to save on legal costs. By the time an employment lawyer is involved the employer is already boxed into a position due to the language used by their HR representative in their communications with the employee alleging constructive dismissal.

A large part of our business is assisting employers with litigation avoidance to ensure that workplace problems don’t become lawsuits.

As with most matters in employment law, it is advisable for employers to spend a small amount of money on legal advice when claims/issues arise to avoid having to spend much more on legal services to respond to constructive dismissal litigation in the Court system.

Constructive Dismissal Claims

If you are an employer and have exposure to a potential constructive dismissal claim contact the experienced employment lawyers at Taylor & Blair LLP today for a consultation.