Author: Daniel A. Lublin
Moderation is a virtue only in those who are thought to have an alternative. — Henry Kissinger
Except in extraordinary cases, employees facing slashed salaries, abusive bosses, demotions or material changes to their jobs used to be without a legal remedy. The reality for most was to either leave, or lose, their job. But employers no longer get to act with legal impunity. Now, equipped with the knowledge that they can sue for constructive dismissal damages, employees subjected to workplace changes turn to the courts:
Workplace abuse: where an employee can show that he or she was treated with incivility, unfairness or disrespect or that management’s conduct was designed to cause the employee to leave, she may be able to resign and sue for wrongful dismissal damages as if she had simply been dismissed. But not any form of perceived mistreatment will suffice: the conduct complained of must be such that no reasonable employee would be expected to tolerate it.
Significant changes: since 1997 when the Supreme Court decided that Royal Trust couldn’t unilaterally amend David Farber’s compensation, employees protesting material changes to their jobs have met with success in the courts. In that case, the Court confirmed that management could not simply make prominent compensation-based changes without the employee’s consent and that by doing so without advanced notice, Royal Trust had actually dismissed Mr. Farber. Since then, demotions or changes in status, discrimination, reassigned work duties, transferring the place of work or virtually any other significant change including a temporary layoff has led to findings of constructive dismissal. Unfortunately, however, whether a change is deemed significant may be a function of the judge you happen to draw more than the impact of the actual change itself.
Despite the broad spectrum of management behaviour that may be tantamount to dismissal, employees should not suddenly begin to line up outside my office doors: as an Ontario judge recently confirmed in the Wronko case, if an employer could simply terminate an employee by extending appropriate notice, then nothing should prevent it from being able to impose serious changes, provided the same amount of notice is given. There are other landmines: employment contracts may anticipate substantial changes, the employee may have mistakenly condoned the changes, or the working conditions may be such that it would be unreasonable to expect him to leave. Get specialized advice.