CONSTRUCTIVE DISMISSAL: do you know what it means? Has it happened to you? You have rights and responsibilities when it comes to exercising those rights.
According to the Government of Canada’s ESDC website,
The phrase ‘constructive dismissal’ describes situations where the employer has not directly fired the employee. Rather the employer has failed to comply with the contract of employment in a major respect, unilaterally changed the terms of employment or expressed a settled intention to do either, thus forcing the employee to quit. Constructive dismissal is sometimes called ‘disguised dismissal’ or ‘quitting with cause’ because it often occurs in situations where the employee is offered the alternative of leaving or of submitting to a unilateral and substantial alteration of a fundamental term or condition of his/her employment. Whether or not there has been a constructive dismissal is based on an objective view of the employer’s conduct and not merely on the employee’s perception of the situation.
Constructive dismissals are covered under Part III of the Canada Labour Code and are considered included where reference exists to the terms “dismissal” and “terminates the employment of an employee”. Importantly, “once it has been established that a constructive dismissal has occurred, there is no question that the unjust dismissal provisions apply,” In order to exercise the protections afforded to you by the Code, you must file a complaint within the 90-day period following. Remember that the unwelcome change must “not be accepted or condoned by the employee.” While you can exercise your right to challenge constructive dismissal while remaining at work, it is also important to file by the 90-day deadline or seek an extension to do so. In rare cases, the courts have determined that “if the employee does not formally initiate proceedings, but simply attempts to negotiate the matter while remaining at work, the employee cannot be said to have condoned the change as long as negotiations are ongoing.”
Some real examples of constructive dismissal are changes in power or duties, threats and suspensions, and reduced hours, salary, status or benefits. For more information, visit ESDC’s web article on Constructive Dismissal.