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What is Constructive Dismissal?

Jessica Gibson

Associate
April 12, 2023

What is Constructive Dismissal?

Constructive dismissal can be characterized generally as a situation where an employer unilaterally changes a fundamental term of the employee’s work without the employee’s consent. Constructive dismissal can happen in various ways, for example, an employer adding significantly more duties to an employee’s workload without further providing the employee a raise or some further compensation.

The Law

The legal test for constructive dismissal includes two branches.

1.      The first is whether the employer breached an express or implied term of the employment contract, and whether a reasonable person in the same situation would have viewed the breach as substantially altering an essential term of the contract.

2.      The second branch is whether, in light of all the circumstances, the employer’s conduct, while not breaching a specific term of the employment contract, nevertheless would lead a reasonable person in the same situation to conclude that the employer no longer intended to be bound by the employment contract.

Constructive dismissal will be established if the requirements of either branch of the test are met.

Protections under the Employment Standards Act

If your employer has changed your employment significantly and/or you are suffering from a toxic work environment that is impacting your mental health, you may be able to make a claim for severance under the ESA. If an employee can establish they have been constructively dismissed and that employee is covered under the ESA, the employee is owed their minimum statutory entitlements without exception. 

Amount of written notice and/or pay required

Length of employment Amount required

Three (3) months or less No notice and/or pay

More than three (3) months One (1) week of notice and/or pay

More than one (1) year Two (2) weeks of notice and/or pay

More than three (3) years One (1) week of notice and/or pay for each year of employment to a maximum of

eight (8) weeks notice and/or pay

Protections under the Human Rights Code

If you are working in an environment where you are facing bullying and harassment related to discriminatory attitudes or actions, you may have a valid human rights complaint. All employers have a duty to provide their employees with a safe place to work free of discrimination. If you are being harassed at work based on a characteristic protected under the BC Human Rights Code, you may be able to seek a remedy through the Human Rights Tribunal by filing a human rights complaint.

Protections under WorkSafe BC

If you are being bullied and harassed at work generally, or are being exposed to an unsafe working environment, you need to report this behaviour to WorkSafe BC. All employers and employees have a duty to report any unsafe work practices. If an employer is causing an employee to feel psychologically unsafe or not ensuring the workplace is free from unnecessary hazards, this lack of safety may result in the employee being constructively dismissed.

Protections within the BC Small Claims and Supreme Court

Employees can also seek a legal remedy through the courts for constructive dismissal. Seeking a remedy through the courts is appropriate if the employee is entitled to common law notice, which is notice beyond the statutory minimums provided under the ESA. To know if you are entitled to common law notice, it is important for a lawyer to review the termination provisions within your employment agreement. If an employee is entitled to common law notice, the lawyer would also make an assessment of the employee’s circumstances to determine if they are eligible for other monetary damages arising out of the dismissal, such as aggravated damages.

 

Each of the suggestions above can be pursued either independently or in conjunction, depending on the facts of your case.

 

Contact us!  If you have any questions about your current employment relationship or are interested in pursuing a constructive dismissal claim, please reach out to one of the skilled legal professionals at Ascent Employment Law. We can advise you on which avenues are in your best interest to pursue.