Understanding Constructive Dismissal In Edmonton
If your employer changes your job changes significantly and you’re feeling stressed – or considering quitting your job – always consult with constructive dismissal lawyers because you’re most likely facing constructive dismissal. At its most basic level, constructive dismissal is when an employer makes enough changes to your position that you’re no longer in the same role anymore.
Anytime you’re facing constructive dismissal – or you think you might be – we recommend consulting an employment lawyer at Kahane Law before you do or say anything to your employer. A lawyer will help you understand your rights, which is important because constructive dismissal bears similar consequences to being fired without cause. Whether you’re an employer or employee in a tough situation, our constructive dismissal lawyers at Kahane Law Office in Edmonton, Alberta can help. Call us today at (780) 571-8463 to arrange an appointment.
Constructive Dismissal: What is it?
Many factors constitute these type of claims. At times, one factor is enough. Other situations, multiple factors combine to meet the threshold. For example, constructive dismissal lawyers work to demonstrate significant changes in the employee’s:
- Work location, for example relocating to another province;
- Position or rank, possibly a demotion;
- Total compensation;
- Benefits associated with the role;
- Hours worked or schedule adjustments;
- Workplace environment;
- Responsibilities with the role;
- Working conditions;
- Ability to perform the job; or lastly
- Work production or output.
In addition, employees facing harassment or abuse often have a claim against their employer for constructive dismissal.
The above examples constitute constructive dismissal because no party to any contract, unless specifically stated in the contract, has the ability to change a contract unilaterally. Both parties in a contract need to agree to enact significant change. This is true for not only written contracts, but verbal ones, as well. As with any type of contract, employment contracts include express terms and, often, implied terms. Constructive dismissal happens when an employer changes significant terms in the contract, be they express or implied.
How Employees Must Mitigate Constructive Dismissal
Any employee that faces constructive dismissal, termination without cause or wrongful dismissal has a duty to mitigate the loss of employment. In short, the employee must try to find a new job. In constructive dismissal situations, this could mean taking a position with the former employer; for example, if the employer offers a position that is similar to the one they originally had, temporary or otherwise. If an employee has faced abuse or harassment, this expectation does not apply. Employees need more than to just claim harassment. Constructive dismissal lawyers demonstrate that this occurred presenting specific evidence to support the claim.
How Employers Avoid Constructive Dismissal Claims
If you’re an employer, we strongly recommend you seek legal guidance before making significant changes in the workplace. If the changes you’re considering implementing are significant, our lawyers can give you advice on the legal ramifications. Whether we advise you to give reasonable notice and/or have employees consent to the changes after you’ve given them the right information, the lawyers at Kahane Law can help you avoid constructive dismissal claims.
Employees Should Beware Of Accepting Changes
As we discussed, an employee who gives informed consent to a significant change in employment no longer has a claim for constructive dismissal. If your employer is making a significant change to your role, ideally you will be given a written document to consider that both you and your employer can sign, should you consent to the change. Be wary, though, of situations when an employer makes a significant change but offers no written agreement. Should this happen and you keep working in the new capacity, your consent may be considered implicit. If you decide you don’t like the change after a while – but you did or said nothing – you may be deemed to have accepted the change.
Employee Damages: Do They Apply?
Changes need to be significant to be deemed constructive dismissal. Sometimes, all it takes is one major change while, other times, the significant change can be a series of small changes. Usually small changes do not, on their own, constitute constructive dismissal; taken as a whole, however, they may. If you’re an employer, you must look at the overall nature of the planned changes to determine if you face liability for damages to employees. Specific situational factors make up the key to these damages. Our Edmonton constructive dismissal lawyers help you navigate changes while avoiding damages.
How Employees Prove Constructive Dismissal in Court
In Alberta, the courts use a three-part test to determine constructive dismissal. Each element is essential to proving it occurred. In court, it is the employee’s responsibility to prove specific factors. For example, Constructive dismissal lawyers use fact to demonstrate:
- The terms of the contract of employment. This task is easy if the contract is a written one but can be difficult if it is a verbal or implied term. In case of the latter, constructive dismissal lawyers prove the term using emails, letters, long standing practice and more;
- A breach of a significant term, or terms, occurred. Employees can prove this by demonstrating a significant change, especially if the change is sudden; and lastly
- Not only did a breach occur, but the breach was fundamental. The contract breach needs to be more than just a minor change; it must be at the heart of the employment contract’s nature.
How Courts Award Employee Damages
If the courts rule in favour of a constructive dismissal, they order damages. Damage assessments include three monetary factors. First, as set out in Alberta’s Employment Standards Code, the employee is entitled to a notice period payment. Second, if the employer humiliated the employee when terminating the employee, the courts may determine extra compensation is owed. Third, in extreme cases the courts may award the employee punitive damages to “teach the employer a lesson”. For example, the courts will often award punitive damages when an employer intentionally harms an employee. For this to occur, the actions of the employer must be so “malicious and outrageous that it is deserving of sanction”.
Legal Advice From Our Edmonton Constructive Dismissal Lawyers
When it comes to navigating constructive dismissal situations and claims, both employers and employees alike should seek legal advice. Employers, you need to understand if changes you’re considering will lead to damages and how you can avoid damages in the future. Employees, consult with our Edmonton constructive dismissal lawyers today to understand your rights and the strength of your case – before you act. Book a consultation with one of our employment lawyers today. You can reach our Kahane Law Office in Edmonton, Alberta by calling us directly at (780) 571-8463 or sending us an email. Help is just a phone call or email away.