Toronto Employment Lawyer Helping Employers Avoid Constructive Dismissal Claims
Constructive dismissal occurs when an employer makes unilateral changes to one or more essential terms of an employee’s employment contract or fails to abide by the terms of the agreement. A finding of constructive dismissal has the same effect on an employer as a finding of wrongful dismissal. An employer who has constructively dismissed an employee may be liable for damages, including pay in lieu of notice and possibly additional compensation. Constructive dismissal claims can be very costly for employers. Employers should consult with a knowledgeable employment lawyer to avoid triggering potential claims.
Toronto employment lawyer Paulette Haynes and the team at Haynes Law Firm regularly work alongside employers to provide tools for managing employees designed to shield employers from liability. Paulette commonly shadows her employer clients to identify potential areas of risk and conflict in order to address them proactively.
Constructive Dismissal in Ontario
Constructive dismissal occurs when an employer imposes change on an employee, which contradicts a fundamental aspect of the employment contract. Employers, therefore, must exercise caution when making changes in the workplace.
Changes that may be considered a valid basis for constructive dismissal include:
- A change in schedule;
- A demotion in title;
- Fundamental changes to an employee’s job description;
- A reduction in compensation through salary, bonuses, or commission;
- A significant geographic relocation; and/or
- Allowing or fostering a hostile work environment.
Haynes Law Firm strategizes with employers facing impending changes to the workplace to identify potential triggers of constructive dismissal. They then design and help employers implement strategies to make change while mitigating their liability and ensuring that employee needs are accommodated to the degree they can be.
Strategies for Employers to Avoid a Constructive Dismissal Claim
To avoid a claim for constructive dismissal, employers must understand potential triggers and implement easy-to-follow procedures and protocols to prevent those triggers whenever possible.
Unilateral Changes by an Employer
To establish a claim for constructive dismissal, employees must demonstrate that their employer made changes to their work environment unilaterally. Conversely, employers with evidence that workplace changes were made bilaterally, perhaps in consultation with the employee, can help safeguard against such claims. Obtaining an employee’s sign-off before implementing significant changes will go a long way towards successfully defending against a future lawsuit by the employee. Often, conflicts that arise from changes to employment can be altogether avoided by taking a proactive approach and including employees in the decision-making process. For example, if an employer needs to change the working hours for an employee, they could discuss possible alternatives with the employee in advance to arrive at a compromise that works for both parties.
It is common for certain factors to change in a workplace, so distinguishing between substantial and insubstantial changes is important in terms of construction dismissal. For an employee to make a successful claim for constructive dismissal based on a change to their employment, change must be significant. To be considered “substantial,” the change must be something that would be regarded as egregious by a reasonable employee.
Employers may wish to rearrange the layout of an office, implement new policies and procedures, or upgrade to new technologies, for example. Such changes would not be considered ‘substantial’ since employees are not required to adjust their schedules or change the length of their commute. On the other hand, mandating that remote employees are suddenly required to work in-office would be considered a substantial change because it fundamentally and significantly changes the very nature of the role.
Employers should consult with a knowledgeable employment lawyer to help identify changes which could be considered substantial or fundamental and develop procedures to avoid constructive dismissal claims.
Paulette and her team are strategic problem solvers. They frequently help employers develop risk-minimizing solutions to reduce the impact of proposed changes on their employees. Paulette is particularly skilled at finding creative, out-of-the-box solutions that allow employers to meet their objectives without overstepping their authority. Paulette creates solutions that work for all parties by providing employees with options and mitigating legal risks for employers.
Hostile Work Environments
Perhaps one of the key ways an employer might make themselves vulnerable to a constructive dismissal claim is to ignore or encourage a hostile workplace. Employers have a statutory duty to provide all employees with a workplace free of harassment and violence.
In addition to policy implementation requirements imposed on employers by statute, employers must also be vigilant in addressing individual incidences or reports of harassment, aggression, and violence in the workplace. If harassment is permitted to carry on unaddressed, the workplace may become untenable for one or more employees and an employer could be vulnerable to a claim for constructive dismissal, even if the employee resigns voluntarily.
Avoid Constructive Dismissal Claims: Contact Haynes Law Firm in Toronto
Haynes Law Firm works with employers across the country to identify and implement custom conflict prevention strategies in various industries. Avoid unintentionally triggering costly constructive dismissal claims with Paulette Haynes’ trusted guidance. With a focus on limiting your organization’s exposure to liability, the team at Haynes Law Firm will work to proactively address potential areas of concern before they become a problem. If employees advance a constructive dismissal claim, the firm provides high-quality advocacy in a variety of forums, including court, mediation, and arbitration. To discuss how Haynes Law Firm can assist your organization, please fill out the online form or call 416-593-2731.