Constructive Dismissal Defined

What is a constructive dismissal and when will it apply?
It is a fundamental change to a term of condition of an employee’s job.  Plain and simple.
Yet, despite a simple definition, it is often difficult to predict when a court will accept an employee is constructively dismissed.
In this week’s national workplace law column in the Metro News, I addressed the various categories of constructive dismissal:
Changed hours of work.
Reduction in compensation.
Temporary layoff.
Harassment or discrimination.
Changed responsibilities.
To read the full article, click here.
Importantly, not every change to an employee’s job will amount to a deemed termination or constructive dismissal.  It is only changes to important terms and only those changes are without consent.
In other words, if an employee accepts a job (implicitly by continuing to work without protest) or expressly by agreeing to the change, they cannot later raise it as a reason to leave and pursue severance.
Until 2008, employers used to be able to provide advance notice to an employee that a change to his or her job would occur in the future.  if that notice was consistent with the amount of severance it would take to terminate that employee, then the job could be changed without consent and without triggering a constructive dismissal.  In theory, if you could fire an employee with six months pay, you could provide that employee six months’ notice of a fundamental change to her job, without liability for doing so.
However, the Ontario Court of Appeal changed that law in a case called Wroko v. Western Inventory, which stands for the proposition that working notice of changes is only effective if the employee is put on notice that, should he or she reject those changes, they will be left without a job.
Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP, which is a team of legal experts who provide practical advice and advocacy for workplace issues.  Daniel can be reached at [email protected].