As employment lawyers, we hear a variation on the following theme all the time: “my work environment is unbearable but they are waiting for me to quit,” or “I’m experiencing a significant change in my role and duties, but they wouldn’t terminate me from my job because they don’t want to give me a severance package.” Then the dilemma kicks in: “but I don’t want to leave without some sort of compensation.”
The above reality is not unique to recent events but it has definitely been exacerbated during recent weeks due to the COVID-19 crisis. Businesses are undergoing significant financial stresses and, in the current state of affairs, many employers’ decision making is anxiety driven. However, the law continues to apply and, absent radical government intervention, will not excuse conduct that would normally amount to a breach of the employee’s rights. That is why many of those who seek our advice are surprised to find out that employees who find themselves in such a predicament are not without legal recourse or remedy.
In fact, many of our clients realize that an employer who tries to “squeeze out” an employee short of actually terminating them is looking at substantial liability down the road. Employers who seek to unilaterally impose materially different terms of employment or facilitate or condone a toxic work environment may be sued for what’s called “constructive dismissal.” In plain English, constructive dismissal means that the law deems the employer to have terminated the employee’s employment relationship thereby entitling the employee to compensation. What compensation would those be? The very same compensation the employee would have been eligible to receive had he or she actually been dismissed by the employer through a formal termination letter.
Furthermore, if there is malice, bad faith or some form of untoward conduct involved, the employer may also be looking at further damages down the road.
In consequence, if you find yourself in a situation where the work environment is becoming unbearable and you’re on the verge of quitting or resigning your job, seek legal advice first. It is possible that what is happening to you amounts to an actionable wrong entitling you to various legal remedies.
Alternatively, if you’re an employer and you are simply not getting along with a particular employee do not make things worse. Be rational and do not act on impulse. Obtain legal advice to assure a lawful and orderly resolution of your workplace conflict.