Constructive dismissal is when there has been a unilateral and fundamental change to the workplace that is not condoned by the employee. This may be due to changes that are unilaterally imposed by the employer including a toxic or hostile work environment.
If the terms of employment have fundamentally changed in a negative way, an employee may have legal recourse to bring a constructive dismissal claim and seek full severance pay. The amount of severance that an employee may be entitled to depends on several factors including the nature and character of the employment, length of service, age of the employee, and the availability of similar employment having regard to the experience, training and qualifications of the employee.
What might constitute constructive dismissal?
There are several scenarios which may occur in the workplace that may be considered constructive dismissal. For a constructive dismissal claim to be legitimate, the change made by the employer must affect an important part of the employee’s job and the change must be unilateral and fundamental. This can happen when the employer makes a unilateral change which breaches the employment contract or when the employer’s actions create or contribute to a hostile work environment.
Even if the employer had no intention of forcing the employee from their position, a fundamental change to the employment contract or work environment could still constitute constructive dismissal.
Some examples of constructive dismissal may include:
- Temporary layoffs
- Vaccination Policy
- Fundamental reduction in pay
- Demand to return to the workplace
- Fundamental change to the work location
- Fundamental change to work hours
- Harassment or abuse
- Toxic work environment
- Unsafe workplace
Condonation of change by the employee
If an employee believes they are being constructively dismissed, they have a limited amount of time in which to take action. If they continue to work without objection for an extended period after a fundamental change, it could be interpreted by the courts as acceptance of the new terms.
When to obtain legal advice?
The answer is always – as soon as possible!
If you are an employer who is planning to introduce changes at your workplace or are aware of a situation that may be viewed as constructive dismissal by your employees, contacting our team of experienced employment lawyers at Minken Employment Lawyers may prevent litigation and help to save significant time and money.
If you are an employee who believes that you may have grounds for a constructive dismissal claim, contact Minken Employment Lawyers to speak with one of our employment law experts to advise you on your situation before you do anything else. Please remember – if you quit your job, you may prejudice your case. A consultation with one of our employment lawyers will help you determine if you have in fact experienced constructive dismissal, how to respond to your employer, and what your options are.
For regular updates and alerts please sign up for our Newsletter to receive up-to-date Employment Law information, including new legislation and Court decisions impacting your workplace.
Please note that this article is for informational purposes only and does not constitute legal advice.
- Can an Employer Change an Employee’s Work Schedule?
- Constructive Dismissal? – What Would a “Reasonable Person” Think?
- What is Workplace Violence and Harassment? – Occupational Health and Safety Act