Have I been constructively dismissed?

In a previous blog, we discussed what options an employee has available to them if they are being harassed and bullied at work. One of the options we outlined there was for the employee to resign from their employment on the basis that they have been constructively dismissed.

What does it mean to be “constructively dismissed?”

If an employee has been constructively dismissed, it means that an employer dismissed the employee without actually stating that it was doing so.  Rather, the employment relationship was terminated because of what the employer did, not what it stated.

Legally, an employee is constructively dismissed when the employer, on its own, makes a substantial change to a fundamental term of the employment contract and the employee does not consent to the change being made.

Aside from having to work in a toxic work environment (i.e., bullying and harassment) an employee may claim constructive dismissal in a number of other situations. These include:

• when the employer demotes an employee, and moves the employee’s office to a secluded location without any justification for doing so;
• when the employer reduces an employee’s pay or other benefits by 15% or more;
• when the employee, who has been working from home, is told that he or she needs to work from the office which is located in another city; or
• when an employee is unexpectedly advised that they will be reporting to the person the employee had trained last year.

Ultimately, whether constructive dismissal has taken place or not will need to be determined on a case-by-case basis. Not just any change will permit an employee to claim that he or she has been constructively dismissed. The change has to be significant, and it must affect an important aspect of the employment relationship.

If you believe that you have been constructively dismissed, it is important that you talk to an employment lawyer first before you resign from your job. There are several reasons for this.  First, making a claim for constructive dismissal has its risks.  Since you are, on the face of it, quitting, your employer will not give you severance unless it decides your claim has merit.  As well, your claim for constructive dismissal will not be successful if you have “condoned” your employer’s breach of the terms of your employment contract. This can happen if you wait too long before claiming constructive dismissal.

DISCLAIMER: The content of this article, and this website generally, is not intended as legal advice and cannot be relied upon as legal advice.  To provide legal advice on your problem, a lawyer must first understand your specific situation.

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