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.
Involuntary resignations: just because an employee left the workplace or uttered the words “I quit” doesn’t automatically disqualify her from severance. The question the judge will ask is whether or not she voluntarily resigned or was she forced to leave. As well, employers who too quickly snatch up a resignation without first ensuring the employee actually intended to leave, risk being deemed to have fired the employee instead. Employees who consider leaving should be asked to take their time and confirm their intentions in writing.
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 the Supreme Court recently reminded us in the Evans case, employees have an obligation to work through changes to their jobs unless they are simply unable to persevere. There are other landmines: if an employer can 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, 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.
Daniel A. Lublin an employment lawyer focussing on the law of dismissal. He can be reached at dan@toronto-employmentlawyer.com.
