Constructive Dismissal: Some common signs and considerations to make

| June 19th, 2017 | No Comments »

Constructive dismissal is a legal term that means the employer imposed changes upon the working relationship that caused the employee to quit. This, in turn, is viewed the same as an unlawful dismissal and entitles the employee damages in notice pay at the very least.

To claim constructive dismissal, the change to the employee’s job must be unilateral, meaning that the employee did not consent to the changes. In addition, the changes must also be fundamental to the employment relationship, signifying that the employer intended to end the employment relation. Courts will examine the particulars of each case to determine if the changes made amounted to constructive dismissal. Some common examples include changes in the amount of responsibility one has, having supervisory duties taken away, intentionally making the work environment intolerable (bullying, ridicule, humiliation), or a decrease in pay.

Having a significant increase of job duties without an increase in compensation may also amount to constructive dismissal, however, there are things courts look for when making this determination. Courts will look at whether the restructuring was necessary for the survival of the business, the state of the economy, and whether such changes were made in good faith and in relation to a business goal. If there is a sign that an employee agreed to the extra duties, whether implicitly or explicitly, a constructive dismissal claim will usually be unsuccessful.

When deciding to ‘quit’ and pursue a constructive dismissal claim, it is important to ask whether the changes imposed signify the employer’s intention to end the employment relation. Absent of a significant pay decrease, it is important to consult with an employment lawyer before deciding to leave employment. What may initially be seen as a fundamental change to an employee’s job may not always be the case. Alternatively, for exceptional circumstances, additional damages in addition to notice pay may be necessary to rectify the treatment to which an employee was subjected. Always seek the advice of an expert before deciding to claim constructive dismissal.

The Changing Workplace Landscape: “Precarious” Work

| June 24th, 2013 | No Comments »

In a detailed report years in the making and released earlier this year, the Law Commission of Ontario (LCO) confirmed what many have long suspected: the nature of employment is changing dramatically.

The traditional workplace relationship – full-time, stable employment with at least some benefits – is becoming increasingly less common. In its place, more and more employees are engaged in work that the LCO characterizes as “precarious” – low wages, little job security, and few or no benefits.


LCO’s Stance on Precarious Work

The LCO is concerned about this trend, as the workers at these sorts of jobs are predictably vulnerable, and precarious work and vulnerable workers present a challenge for society as a whole. Such “precarious work” limits employees’ ability to fully participate in the community, due to a lack of financial resources due to low wages and insufficient time due to often working multiple jobs. This predictably contributes to family stress. According to the LCO, 22 percent of Ontarians work in low-pay, unstable jobs.

Many employers rely on “precarious” workers in order to remain profitable, especially in certain industries that are dominated by small businesses with low profit margins. Given the current state of the economy, this trend is projected to continue for the foreseeable future.


How the Changing Workplace Affects Employees, and What Can Be Done

Currently, ignorance of the law by employees and employers alike, as well as intentional breaches of the law by some unscrupulous employers, are major obstacles for employees. The LCO’s report makes numerous recommendations on changes to both employment standards legislation and government enforcement strategies that, it hopes, will restore some balance to workplaces that are increasingly relying on these types of jobs. The LCO hopes that improved communication and increased enforcement will lead to fewer workplace law violations; additionally, the report urges more robust protections for workers engaged in “precarious work” in employment legislation. It remains to be seen to what degree the LCO’s recommendations will be adopted as government policy.

Despite the changing nature of the workplace and the shift away from traditional, full-time employment, the vast majority of Ontario employees – even those doing “precarious work” – are currently protected by the Employment Standards Act and other workplace legislation. Employees would be well served to learn about these rights and protections, to ensure that they are treated fairly. Employers could save themselves future headaches by learning which workplace laws apply to them and ensuring that they are always in compliance. To address the changing workplace landscape, precarious work must be at the top of the list for employees and legislators alike.


Can I say “NO” to my workplace changes?

| June 1st, 2012 | No Comments »

Luckily, you can!  An article written in the Metro by Daniel Lublin, Toronto Employment Lawyer talks about the following types of changes that can be rejected:

Changed responsibilities.  If you have been hired for a defined role and that role is later changed without your consent, you may be entitled to leave your job and sue for damages as if you have been fired.

What about more work for the same pay?  In a recent case, an Ontario judge found that an employee was wrongfully dismissed when her job doubled but without any increase in pay.

Reduction in compensation.  You can reject pay cuts, however, the problem is that it is not clear how large the pay cut must be, since there are some cases where a five per cent reduction in overall pay could be refused but there are also cases where a 15 per cent decline was permitted.

Changed hours of work.  Your employer cannot change a specific shift or certain hours that have become a customary without your consent.

Harassment or discrimination.  If you objectively show that the workplace was intolerable and there was no other reasonable option but to immediately leave, you can leave work and then sue for damages.

Probation.  Probation period in generally cannot be imposed at their discretion, as a form of discipline.  Unless agreed to or used as last resort.

The full article can be found here, and for some more related articles please visit our web site.