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 quickly turn to the courts:
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 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.
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 an employee’s consent and that by doing so without advanced notice, Royal Trust had actually dismissed Mr. Farber, when that wasn’t its intention.
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.
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, an employer is entitled to be critical of unsatisfactory performance and to take measures, disciplinary or otherwise, to remedy that problem. As well, employment contracts may anticipate substantial changes or the employee may have mistakenly condoned the changes. Therefore, not all cases of perceived injustice will be welcomed by the courts. The key is to get specialized advice before taking any action.
Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP. firstname.lastname@example.org