Constructive Dismissal and Constructive Termination
Constructive dismissal and constructive termination are terms that describe an employer’s conduct or the working environment so intolerable that it forces an employee to resign. It is important for employees who think they may have been the victim of a constructive dismissal to seek legal advice as soon as possible, as there are strict time limits on taking legal action. In many cases, a successful claim could lead to the award of damages, such as severance pay, lost wages, and benefits.
The first type of conduct that can result in a constructive dismissal is a breach of a fundamental term of an employment contract. This can include a violation of a written contract, such as a written notice of termination, or a verbal promise, such as an oral commitment to a certain work arrangement. Other examples of a breach of a fundamental term include the reassignment of an employee to menial duties, a reduction in compensation, or an unauthorized change to a job description.
While it is common for a person to feel that a situation has become so intolerable that they have no choice but to resign, it is not always clear what situations will be considered constructive dismissal. A court will usually decide whether a particular situation meets the standard of constructive dismissal by asking what a reasonable employee would have felt compelled to do in the same circumstance. The answer to this question will depend on the facts of each individual case, and it can include factors such as whether the change is a substantial one (this will generally be determined by what constitutes a “fundamental term” of an employment contract – this will vary from person to person).
What is Constructive Dismissal and Constructive Termination?
For employers, it is important to ensure that all changes to employment terms are communicated in advance and clearly explained to all affected employees. Employers can also reduce their risk of constructive dismissal claims by obtaining consent from employees before making any changes, where this is possible. Providing regular training on employment law standards can also be helpful. In addition, strategic problem solving is essential – Paulette and her team are often able to help employers develop risk-minimizing solutions that meet their business needs while mitigating the risks of constructive dismissal.
Courts and labor tribunals typically assess constructive dismissal toronto claims based on an objective standard, considering whether a reasonable person in the same situation would find the working conditions intolerable. Factors such as the duration and severity of the employer’s conduct, the employee’s attempts to address the issues through internal channels, and the impact of the conduct on the employee’s physical and mental well-being are taken into account.
In many jurisdictions, employees contemplating constructive dismissal are required to take reasonable steps to mitigate their damages. This might involve attempting to resolve the issues with the employer through negotiation, seeking assistance from human resources or employee assistance programs, or exploring alternative employment opportunities within the organization. Failing to take such steps could weaken the employee’s case and affect the outcome of any legal proceedings.
