EMPLOYEES MUST BE CLEAR BEFORE CLAIMING CONSTRUCTIVE DISMISSAL
A constructive dismissal is a termination where nobody says you are fired. If an employer significantly changes the terms of employment without reasonable advanced notice and without the employee’s consent, the employee may take the position that they have in fact been terminated, leave and sue for wrongful dismissal.
Determining whether the terms of employment have been changed in a significant enough manner to constitute a constructive dismissal, however, is not always easy. Employees who make the wrong assessment and walk out of the workplace without enough provocation can easily end up with nothing but a lawyer=s bill to show for it.
A man named Paul worked for Canada Post for approximately 16 years.
Three years before he left, his office was moved to his home. He said that change was forced upon him. The employer said he asked to work from home.
Two years before he left, a fellow employee suggested that Paul had inappropriately taken $10,000. When Paul complained, the fellow employee signed a letter of apology.
Paul alleged that the final straw was the increase of his personal sales targets from $10 million to $120 million. He said there was no way he could make bonus with such a ridiculous target. The employer said that Paul knew perfectly well that the $120 million sales target was for the 8 person sales team, no just for Paul.
Over a 9-day trial, Paul alleged that the cumulative effect of all these grievances was that he had been constructively dismissed and was entitled to pay in lieu of reasonable notice for his 16 years of service.
Paul, however, never complained to anyone about working from home and he had been doing it for 3 years by the time he left. The court found that Paul had condoned or accepted the change by his silence over such a long period of time.
The court found that one slanderous statement by a fellow employee followed by a written apology was not a constructive dismissal.
The court found that Paul not only knew the $120 million sales target was not his alone and that he made no effort to complain about the sales target or clarify it with anyone.
This case should never have gone to trial. It may very well be that Paul decided to go to trial despite his lawyer's advice.
An employment lawyer, when giving advice to somebody who thinks they may have been constructively dismissed, has to resist the temptation to tell the client what they want to hear.
As the court pointed out in Paul's case, the facts have to be assessed objectively. The issue is not how the employee perceives the employer's actions. What the employer does may make the employee feel terrible. That, however, is not enough to constitute a constructive dismissal. The employee=s perception and reaction must be reasonable given what actually happened.
The judge in Paul's case found that Paul overreacted to a number of minor irritants. Paul ended up paying his lawyer's bill for a 9-day trial and part of the costs incurred by his former employer.
Anyone considering leaving their employment because of a perceived constructive dismissal should think very carefully and consult an employment lawyer first. You may not only end up with no pay in lieu of notice, but in debt as a result of the legal costs.
As published in the Hamilton Spectator, March 30, 2004