If your employer changes the terms of your employment to such a degree that you feel “forced out” of your position, you may be the victim of constructive dismissal.
Alberta’s Employment Standards Act protects you against this form of dismissal, which may be adopted intentionally or unintentionally by an employer to prompt you to resign.
It is considered a type of wrongful dismissal, for which you can claim damages.
If you have resigned from your job in Red Deer under these circumstances or feel like your employer is making changes that make your position untenable, speak to one of our local employment lawyers before taking any action.
WHAT IS CONSTRUCTIVE DISMISSAL IN RED DEER, AB?
Constructive dismissal is a type of “disguised” dismissal. You may also hear it referred to as “quitting with cause”.
According to the Canadian Government:
“The phrase “constructive dismissal” describes situations where the employer has not directly fired the employee. Rather the employer has failed to comply with the contract of employment in a major respect, unilaterally changed the terms of employment or expressed a settled intention to do either thus forcing the employee to quit.”
To be considered constructive dismissal, the change(s) must be substantial enough that they materially alter the terms or the conditions of employment.
For instance, unilaterally changing your pay or forcing you to permanently change your hours from your normal dayshift to a night shift might be construed as constructive dismissal.
However, simply making minor changes to your work hours or responsibilities are not sufficient to claim constructive dismissal. Most small changes are considered normal and acceptable.
CAN CHANGES TO YOUR JOB LEGALLY END YOUR EMPLOYMENT?
According to the Employment Standards Act, which covers most employers in Alberta, if substantial and unilateral changes are made to the fundamental terms of your position, your employment is considered to have been terminated.
Therefore, if your employer fails to provide adequate notice or severance pay, they could be held liable.
This is slightly different from constructive dismissal. With constructive dismissal, you should not do anything that implies agreement with the changes made by your employer or it will damage your case. You need to make it clear very quickly that you do not accept the changes.
However, providing you are covered by the Employment Standards Act, if the changes substantially alter your job, your employment is considered ended and you are entitled to the minimum notice or pay regardless.
WHAT ARE MY OPTIONS IF I SUSPECT CONSTRUCTIVE DISMISSAL?
Constructive dismissal is rarely a straightforward matter for an employee.
The burden of proof rests on you, as the employee, to demonstrate that the changes were substantial enough to affect a specific term of employment to such a degree to be considered constructive dismissal.
Fortunately, you do NOT need to show that the employer intended to encourage you to leave.
SHOULD I OBJECT TO THE CHANGES WITH MY EMPLOYER?
If your employer makes fundamental changes to your job and you continue to work without objecting, you may lose some of your legal rights.
For instance, if you work for two months after your employer unilaterally changes your wages and you don’t say anything, you may be seen as condoning the changes. In other words, there is an implied acceptance of the change.
In such a case, it would be almost impossible to claim constructive dismissal.
But you should not instantly quit your job either. That would be a drastic step to take. Instead, as soon as you become aware of the changes, seek legal advice and clarify the steps to take.
Remember that an employer does have the right to make reasonable changes to the employment terms and policies as the need arises.
Cases can be open to a high degree of interpretation by the court and, as such, careful assessment by an experienced employment lawyer is advisable before deciding to proceed.
TYPICAL EXAMPLES OF CONSTRUCTIVE DISMISSAL IN RED DEER, AB
We’ve already highlighted a couple of instances of unilateral changes that may be considered constructive dismissal: a change of pay or a drastic change to work hours.
However, there are many other terms of employment apart from pay and working hours that are generally considered to be fundamental to an employee accepting a role – and which, if changed, might force a resignation.
These include changes to:
- Health benefits (dental, vision, etc.)
- Retirement benefits
- Paid time off
- Maternity or paternity leave
Unilateral changes to any of these terms without prior agreement could create substantial problems for an employee.
If the employee was aware that a change was likely when accepting the job, a claim for constructive dismissal based solely on that change is unlikely to be successful.
Similarly, if a conflict with a change of company policy arises because of a change in your own circumstances, it is unlikely to be considered constructive dismissal.
A good example of this is if an employer changes the maternity leave policy after you were hired but before you became pregnant.
However, if the policy was changed without discussion just before your baby is due, that would be a different matter. It may be considered a substantial change to a fundamental term of your employment.
FOR EMPLOYERS IN RED DEER ALBERTA
Changing the terms and conditions of employment without obtaining the prior agreement of the employee is risky and you could be held liable. Constructive dismissal qualifies the employee for the same benefits as wrongful dismissal.
Failure to provide reasonable notice or severance pay can mean that the matter ends up in court. It’s better to find other ways and to negotiate with your employees, if necessary.
Consult with one of our employment lawyers if you are unsure about your legal obligations when terminating an employee in Alberta.
ARE YOU A VICTIM OF CONSTRUCTIVE DISMISSAL IN RED DEER?
If you believe you have been the victim of constructive dismissal in Red Deer, it is advisable to get legal advice as soon as possible.
The sooner you have a lawyer fighting for your legal rights, the better protected they will be. Your lawyer can help preserve documents and other evidence that is crucial to your case.
At Taylor Janis, we have helped many Albertan workers protect their rights and can help determine the best way to protect yours.
A Taylor Janis employment lawyer can advise you of your options during a confidential 30-minute telephone or video consultation. Call us directly at 587-333-4399 or contact us online.
Call us now to book an initial consultation: 604-423-2646.