Constructive dismissal

By Pulat Yunusov

Recently, I consulted a client who was in a conflict with a few co-workers. Let’s call him Jack. My client told me they did not like him. Jack received emails accusing him of poor communication skills and mistakes in the performance of his work duties. Jack convinced me that the accusations were groundless. He believed his co-workers wanted him to quit so they could help their friend take his place. He thought it was bullying and wanted it to stop. Jack’s bosses didn’t help him much. But none of the bosses took part in or condoned the criticisms. One of them did ask Jack’s co-workers to tone it down, and the tension went down a little for a while. Still, Jack felt uncomfortable at work.

Jack talked to me because he clearly wanted one of two things: a complete end to what he thought was bullying or termination of his employment with a fair severance package. He was willing to leave if his employer paid him enough.

Usually, if you quit your job, you cannot expect any good-bye package. Employers must pay terminated employees if they are dismissed not if they leave voluntarily. The amount depends on such things as how long you worked there, how much you made, what your job was, how you were originally hired, etc. If the employer fires you for a good reason, it doesn’t have to pay you anything. Good reasons can include lying, stealing, punching someone in the face, or failing to stop doing something wrong but less serious after several warnings. This is called dismissal for cause. If there is no “cause” for dismissal, you must get either an early notice of dismissal or whatever you would have earned during the period after such notice if they want to let you go right away.

But what if you did nothing wrong, but your job becomes unbearable? Sometimes in cases like that, you can quit and still expect a payment as if the employer terminated you without cause. When your employer changes a fundamental term of your job without your agreement, the law recognizes your right to quit and keep your pay for a certain while (or get it all at once). This is called constructive dismissal. The basic rule is a fundamental term of your job must be at stake and you must not agree to its change. Cutting your pay, demoting, taking all responsibility from you, cutting off your access to basic tools you need to do your job, demanding that you work completely new hours, serious harassment—all of those things may be constructive dismissal.

I told Jack that he probably didn’t yet have a case for constructive dismissal. A couple of sarcastic emails belittling his communication skills and a few times when he though he was intentionally set up for failure did not justify the risk of litigation. If Jack accused his employer of constructive dismissal and sued, he would definitely lose his job, but his success in getting a good package through the courts was far from guaranteed. The only assured payout was my legal fees. I recommended to wait and gather more evidence, and yes, to bear up. Law is a powerful, blunt, and expensive tool, and often it expects some degree of stoicism. That’s why it’s important to consult a lawyer before taking any drastic steps at work. We may actually prevent useless litigation.

Pulat Yunusov is a Toronto litigation lawyer.

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