Prevent Constructive Dismissal Claims
If an employer makes a unilateral change to an express or implied term of the employment contract, the employee may be able to consider this to be a repudiation and claim wrongful termination. This is because the change amounts to an attempt to impose new terms and conditions on the employee that go beyond those in the employment contract. This can apply whether the change is made before the time for performance has arrived (anticipatory breach) or once it has started (breach at the time of performance). The question of what constitutes a repudiation of the employment contract will be determined on a case-by-case basis, depending on the specific circumstances of each situation.
A constructive dismissal claim can arise if an employee feels they have been forced to resign from their job as a result of intolerable working conditions created by their employer. This can happen in cases where the employer creates an environment in which it is impossible for them to successfully carry out their duties, despite having raised concerns with their employer. It can also occur where the employer engages in unreasonable behaviour, such as bullying or harassment.
The burden of proof in a constructive dismissal case is on the employee, meaning that it falls to them to prove that their employment was terminated in this manner. This can be difficult, especially when the employer does not explicitly terminate the employee’s contract in writing. In these instances, it is important to keep records of all interactions with your employer, including emails, text messages, voicemails, or even written statements from colleagues. It is also crucial to have evidence that you did raise your concerns with your supervisor or manager and that they failed to resolve the issue.
Can an Employer Prevent Constructive Dismissal Claims?
An example of an unreasonable change that could be construed as a constructive dismissal would be changing the length of an employee’s shifts, moving employees from 9 to 5 to overnight hours or requiring them to work in-office. A failure to pay vacation, overtime, salary or other benefits also constitutes a breach of an employment contract and could potentially qualify as a constructive termination.
In many instances, it is possible to prevent a constructive dismissal claim by being proactive and communicating with your employer about any changes to the workplace that are being implemented. Taking the time to do this, perhaps with the help of an experienced employment lawyer, can help you avoid potential conflict and a possible wrongful dismissal claim.
An experienced toronto constructive dismissal lawyer can evaluate your situation and advise on the best way forward. It is important to act quickly, however, as the limitation period for filing a claim with WSIB or the HRTO is 2 years and there is a 6 month limitation period for court proceedings. Contact Ball Professional Corporation to learn how our team of lawyers can assist you. Our office is located in Toronto, Ontario. We handle various employment law matters, including wrongful dismissal.