CONSTRUCTIVE DISMISSAL
Constructive Dismissal Lawyers in Calgary
What Is Constructive Dismissal in Alberta?
A constructive dismissal covers any situation where an employer unilaterally alters a fundamental term or condition of an employee's rights in an employment arrangement, to the point where an objective person would find continued employment intolerable. The three most common forms of constructive dismissal involve salary decreases, demotions and/or the creation of a hostile work environment, but can include a variety of other factors.
How Long Do I Have to Respond to a Constructive Dismissal?
In cases involving potential constructive dismissal, time is of the essence. Alberta courts typically allow an employee as little as a week or two to challenge their employer on unilateral changes to their employment agreement before the employee is deemed to have 'acquiesced' or accepted the changes. Like with any contract, if one party breaches the agreement, the other party has the option to treat the contract as being repudiated, or move forward with the relationship. If they wait too long, they risk losing their claim.
Can Constructive Dismissal Happen Gradually?
That is not to say that you should not speak with an employment law firm just because several weeks or months have passed since your employer imposed a unilateral change to your working conditions. Many constructive dismissal scenarios are pre-meditated by the employer, introduced to you piecemeal over time, and are intended to squeeze you out of the company until you voluntarily resign. Indeed, constructive dismissal is also sometimes called 'dismissal by disguise'.
At minimum, speaking with a constructive dismissal lawyer can leave you equipped to protect yourself in the future; for example, by actively protesting in writing any future changes to your contract and establishing a paper trail.
Do I Have to Resign to Claim Constructive Dismissal?
A constructive dismissal requires an employee to formally resign from his or her position in writing. It is important that the written resignation letter does not give the impression that the employee is voluntarily choosing to leave, or is doing so on good terms. Employees who involuntarily resign often receive severance, employees who voluntarily resign almost never do. It is typically a good practice to include the term 'constructive dismissal' right in the letter to avoid any confusion as to why you are leaving.
What Should I Do Before Resigning?
It is important to contact an employment law attorney as soon as possible after you realize you may have a constructive dismissal claim, but before you resign. There are no hard and fast rules about what constitutes a constructive dismissal. Each case depends on the unique facts at hand. This is why it is important that you talk to an experienced employment lawyer as soon as possible after an incident has occurred, but before you resign.
Constructively dismissed employees are typically granted the same remedies as employees who have been terminated without cause. Visit our page on wrongful dismissals for more information.
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Common Questions About Constructive Dismissal
Can a Pay Cut Be Constructive Dismissal?
Yes. Even a 10% reduction in an employee’s compensation can amount to constructive dismissal. This can include not only a reduction in base salary, but also changes to commissions, bonuses, incentive compensation, benefits or other important components of the employee’s compensation package.
Whether a particular reduction is sufficient depends on its magnitude and the circumstances. An employer also cannot necessarily avoid a constructive dismissal claim simply by changing the way compensation is calculated rather than expressly reducing an employee’s salary.
What Changes Can Amount to Constructive Dismissal?
Constructive dismissal can arise when an employer makes a significant change to an employee’s job without the employee’s agreement. Examples can include a reduction in salary or compensation, demotion, significant changes in duties or responsibilities, changes in reporting structure, relocation, reduced hours, temporary layoff, or the creation of a hostile or intolerable work environment.
Not every workplace change will amount to constructive dismissal. The significance of the change, the terms of the employment agreement, the employer’s reasons and the surrounding circumstances all matter. Employees should be particularly careful about continuing to work without objecting, as doing so may eventually be treated as acceptance of the change.
Can a Demotion or Change in Duties Be Constructive Dismissal?
Potentially. An employer does not necessarily have to reduce an employee’s salary to constructively dismiss them.
A significant loss of responsibilities, authority, status or supervisory functions can fundamentally alter the employment relationship even where compensation remains unchanged.
Changes in title, reporting structure, decision-making authority or the employees and functions under a person’s supervision may also be relevant. The question is whether, viewed objectively, the employer has substantially changed the position the employee agreed to perform.
What Are Other Examples of Constructive Dismissal?
In addition to compensation decreases, demotions, and layoffs, other common indicators of a constructive dismissal can include:
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Changes in work schedule or hours;
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Change of work location;
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Your Employer's creation or tolerance of a toxic work environment;
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Consistent performance reviews and/or 'competency testing';
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Changes in who you report to; and
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Significant changes to your duties and responsibilities.
Can a Temporary Layoff Be Constructive Dismissal?
A temporary layoff can amount to constructive dismissal where the employer does not have the contractual right to lay the employee off. The fact that a layoff may comply with the Alberta Employment Standards Code does not necessarily mean that the employer has the right to impose it under the employment contract or at common law.
Employees who have been unexpectedly laid off should obtain legal advice promptly. A temporary layoff can give rise to a claim for constructive dismissal and severance, even where the employer describes the interruption in employment as temporary.
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