The Checklist for Constructive Dismissal
By Daniel A. Lublin

Not many men have both good fortune and good sense.
~ Titus Livy

Employees faced with changes to their jobs used to just deal with the problem and move on. Seldom did they protest and if they did, it often did not matter. Now, armed with the knowledge that they can resign instead and sue for constructive dismissal, employees faced with a problem at work will call their lawyer. 

What is a constructive dismissal and when will this claim succeed?

Changed hours of work. If a specific shift or certain hours have become customary, an employer cannot make any real change without that employee’s consent. In a recent Ontario case, the court found that Ken Blair was constructively dismissed because, after nine years of working only rotating shifts, his company suddenly forced him to work nights.   

Reduction in compensation. Pay cuts, even minor ones, can permit an employee to leave and then sue for severance. There are cases where a five per cent reduction in overall pay was viewed as a dismissal, but there are also cases where a 13 per cent decline was rejected. As well, since compensation is made up of benefits, bonuses or any other perquisite, a change to these terms can also amount to a dismissal. Often, since there is no objective threshold, other factors, such as the impact of the change, will also be considered.  

Temporary layoff. Unless a contract provides otherwise, there is no right to lay off an employee. If not recalled back to work in a reasonable time period, that employee can view the job as at an end and sue for severance.   

Harassment or discrimination. Harassed employees can leave and then sue for damages as if they had just been fired. But since harassment is often in the eye of the beholder, a tough boss may not necessarily mean there will be a successful claim. The employee must objectively show that there was no other reasonable option but to immediately leave.  

Changed responsibilities. Unless a contract states otherwise, an employee is hired for a defined job and this cannot be changed without consent. Since employers cannot “force” new duties on employees, usually these occur over time and it is often by design. However, whether a job gradually changes or is changed overnight will seldom matter. The courts will ask whether the job the employee is performing is what she was hired to do.       

Probation. Many employers operate under the misconception that a probation period is implied for new hires or that they can impose probation later on, as a form of discipline. They are mistaken. Unless agreed to or used as last resort, it generally cannot be done.

Daniel A. Lublin is a partner with the employment law firm Whitten & Lublin LLP.  He is consistently recognized as one of Canada’s top employment lawyers.  Daniel can be reached at dan@toronto-employmentlawyer.com.

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