Constructive Dismissal

When a company undergoes major business changes, reorganization or downsizing, it may affect the job duties and responsibilities of employees. Depending on the circumstances, this may lead to a claim of constructive dismissal by an employee. In order to be valid, the claim must be based on intolerable working conditions and the employer must have breached a fundamental term that goes to the root of the employee’s contract. The breach can be either express or implied.

Changes in work schedules and shifts can create intolerable working conditions if they significantly alter an employee’s normal routine. For example, if an employer requires you to work evenings or weekends, it is likely a breach of your employment contract and could amount to constructive dismissal. Similarly, if you are required to travel extensively in the course of your employment, it is likely a breach of the terms that you accepted when you took on your job as this could significantly interfere with your work-life balance and cause you distress.

However, it is important to note that a single instance of intolerable working conditions does not make a case for constructive dismissal. In order to qualify, the intolerable working conditions must be repeated in a consistent and persistent manner. In addition, the employer must have been aware of and/or intentionally ignored your concerns about the work environment and acted in bad faith.

Can Constructive Dismissal Occur During Company Restructuring?

Aside from changing work duties and responsibilities, other actions that can be deemed to be a breach of contract include demoting an employee without cause or taking away a contractual benefit such as vacation pay, overtime pay or salary. The refusal to address a grievance is also likely to be considered a breach of the contract of employment as it shows that your employer is indifferent to your needs and well-being in the workplace.

To ensure that employees are not subjected to a claim of constructive termination during a company restructuring, it is crucial that your employer seeks consent or otherwise mitigates the impact of changes in terms of employment by offering incentives to those affected. This can help to prevent employees from feeling like they have no option but to resign and may also assist them in finding a new job more quickly.

It is also advisable to enlist the support of an experienced wrongful termination lawyer before filing a claim for constructive dismissal. An attorney can offer clarity on the law and its implications, as well as provide valuable assistance in negotiating a settlement agreement. Many constructive dismissal claims settle through negotiations, and an attorney can help to ensure that employees receive the compensation they deserve, including notice pay, severance pay and/or other damages. Haynes Law Firm regularly strategizes with employers facing impending changes to their workplace and helps them develop strategies to minimize the risks of a constructive dismissal claim. Contact Paulette Haynes for more information. You can reach her directly at 416-599-7500. Alternatively, you can use our convenient online contact form to arrange a confidential and free consultation with an expert employment lawyer.

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