When is it a Resignation vs Constructive Dismissal?
What is the difference between a resignation and a constructive dismissal? The answer is, generally, the outcome of the court case.
A resignation is when the employee clearly, voluntarily, and unambiguously terminates their employment agreement with the employer. Conversely, a constructive dismissal is when the employer, by their actions, breaks the employment agreement by changing a fundamental term of their employment. Examples of the types of changes include actions like reduced compensation, changes in duties, reporting structure, job title, level of responsibility, a new employment contract, relocation, a toxic work environment or making your job or work more difficult to force you to leave.
To understand the difference, it is important to consider the options that an employee has when an employer changes a fundamental term of their employment:
- They can accept the change as part of their new employment agreement;
- They can clearly protest the changes and stay employed only on the grounds that their employment agreement remain unchanged; or
- They may resign from their employment and commence a claim for constructive dismissal.
How Do Courts Decide Between Resignation and Constructive Dismissal?
As one can imagine, when an employee chooses the third option, employers will almost invariably maintain that there is no constructive dismissal and that the employee simply voluntarily resigned. The court will then have to decide, based on the facts, whether the employer’s conduct changed a fundamental term of the employment agreement, amounting to a constructive dismissal. If the court makes this finding, then the resignation is a constructive dismissal, and if the court does not, then it is a voluntary resignation.
How can Whitten and Lublin Help?
Since the difference between a resignation and constructive dismissal is a matter of the court outcome, it is vital that an employee faced with a constructive dismissal carefully consider their options with an employment lawyer before taking any action, especially resigning. If you are an employee who is being faced with a potential constructive dismissal scenario, Whitten and Lublin is here to assist you. Contact us online or by phone at (416) 640-2667.
Author – Aaron Zaltzman