When an employer unilaterally changes an essential term of the employment contract, a remedy in employment law could be for an employee to claim constructive dismissal. These tactics are sometimes used by employers to remove employees without providing notice or payment lieu. The employer may be changing your work environment to make it unbearable in an effort to get the employee to quit and abandon their entitlement to notice. In such a circumstance, the employee may have to prove that the conduct of its employer fundamentally and unilaterally altered the employment relationship.
The following are some examples of unwanted changes:
- Material changes to the job description (i.e. hours of work, different roles);
- Reduced compensation;
- Assign tasks that are unreasonable; and
- Creates a hostile workplace (excluding you from social events; gossip; rumours)
In other words, the employer imposed a change that made it reasonable for an employee to resign, which for all intents and purposes the court may see as a wrongful dismissal by the employer.
The employee may then claim damages in the form of notice (or ‘severance’) pay. Common law notice pay is typically more than the severance pay guaranteed under employment law; pursuing a constructive dismissal claim, therefore, may entitle an employee to significantly more in damages.
An issue arises, however, when an employee’s termination pay is limited by a termination clause within his/her employment contract. In this instance, an important question is whether the unilateral change by the employer to the employment contract voids the termination clause. If so, the employee would be entitled to greater damages; conversely, the employee’s entitlements would be significantly less if limited by the termination clause.
If you feel that you are being pressured to quit, please talk to a lawyer before taking any steps.
Wrongful dismissal is a legal phrase. It describes a circumstance where the employer’s manner of termination constitutes a breach of the employment agreement.
Whether you are a part-time, full-time, temporary or permanent employee, your employment relationship is governed by the terms of an employment contract that you entered into with your employer. Whether written or not, each employment contract contains a contractual term that requires an employer to provide an employee with advance notice prior to terminating his or her employment.
The reason why employers must give their employees advance notice is because employees need time to prepare for the end of their employment and seek out other employment opportunities. This term may exist by virtue of the common law because the parties did not agree to a specific amount of advance notice (i.e., implied term), can be contained in a written employment contract setting out the amount of advance notice the parties agreed to (i.e., explicit term), or may be imposed by the Employment Standards Act (“ESA”) or Canada Labour Code (i.e., statutory term).
Wrongful dismissal can occur in various ways. The following are some of the most common circumstances of wrongful dismissal:
- An employee is terminated without cause and without reasonable notice;
- An employee is terminated without cause and without any notice; and
- Employer wrongly alleges cause for termination.
If you have been terminated, and you believe it may have been wrongful – consider speaking to an employment lawyer about your circumstances and options.
The BC Human Rights Code, the Canadian Human Rights Act, and the Canadian Charter of Rights and Freedoms protect employees and others from discrimination and/or harassment on the basis of race, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, age, family status, or physical/mental disability.
Discrimination can take many forms but can generally be described as distinct treatment related to the personal characteristics of an individual or group, which has the effect of imposing disadvantages that is not imposed upon others, or which limits access to opportunities and benefits that are available to other members of society.
Discrimination can be obvious and blatant. It can also be covert and subtle. For example, your employer implements a workplace policy or rule that appears to apply equally to all workers. However, it soon becomes apparent that it has an adverse effect on you because of your disability, religion, or other protected ground. Because your employment experience has been adversely effected relative to other employees who do not share your personal characteristic, the BC Human Rights Code and the Canadian Human Rights Act impose a duty on the employer to accommodate you to the point of undue hardship. If the employer cannot demonstrate that it accommodated the employee to the point of undue hardship, the employer will have discriminated against the employee.
Most human rights issues in the workplace arise when employees believe they were terminated for discriminatory reasons.
We advance and defend human rights issues in the courts, as well as before the human rights tribunals.
If you believe your employer is treating you in a discriminatory manner, please talk to a lawyer about your options.