Have you resigned voluntarily? Or have you been constructively dismissed?
Constructive dismissal happens when the employee’s fundamental terms of employment are changed unilaterally by the employer. Generally, the terms of employment should be the important aspects of the employment contract or relationship. Changes that are too small or that occur to less important terms in the agreement will not trigger constructive dismissal.
The employee’s employment will usually be impacted to the point where it would be unreasonable to stay or to accept the fundamental changes in their employment if the employee has been constructively dismissed. As such, the employee will then resign from their employment. However, resignations need to be freely and voluntarily given for the resignation to be valid. If the resignation that was provided by the employee to the employer is due to the employee facing significant changes to their working conditions, then that “resignation” may be a response to a constructive dismissal.
Examples of constructive dismissal
There are various common ways in which a claim for constructive dismissal can arise. Examples include:
- reduction in pay or wages;
- reduction in benefits;
- change in an employee’s job duties or responsibilities;
- increase in workload or hours;
- decrease in workload or hours;
- demotion;
- transfer to a new work location;
- harassment, discrimination, unfair treatment, toxic work environment or bullying;
- unlawful layoff;
- suspension, threats or other unjustified discipline; or
- failure to accommodate an employee’s disability up to the point of undue hardship.
What should you do if you think you have been constructively dismissed?
Employees should contact an employment lawyer to see if they can make a claim for constructive dismissal against the employer. An employment lawyer can help the employee to evaluate the situation and figure out if the employee’s resignation was “forced” and that it was in fact constructive dismissal. The employment lawyer can then discuss with the employee what the next steps should be.
Once a claim for constructive dismissal has been made then the employee will generally claim common law and statutory damages in a wrongful dismissal lawsuit. The employee may be entitled to severance pay and / or termination pay. Depending on the circumstances, the employee may also be entitled to punitive and general damages for discrimination, harassment or bad faith.
It is the employee who must show (on the balance of probabilities) that they were constructively dismissed. If the employee fails to prove that they were, in fact, constructively dismissed, then they will be deemed to have resigned from their employment.
Next Steps
For a deeper dive, you can read our guide, “What You Need to Know About Constructive Dismissal”, and explore the related question, “Can My Employer Make Changes to My Job Without My Consent?”. However, discussing your own specific situation with an experienced employment lawyer is the best course of action for you to understand what your employment rights are and how best to protect them.
