employee prove constructive dismissal
The law in Canada allows an employee to resign from their job if they feel that their employer has breached their employment contract by treating them unfairly or unreasonably. This is known as constructive dismissal and can lead to a payout of damages in lieu of notice. However, it can be a complicated claim to bring and an employer will want to defend any claims brought against them vigorously. This means that an employee will need to prove their case on a balance of probabilities in order to succeed in a constructive dismissal case. The best way to do this is to hire an experienced constructive dismissal lawyer to act on their behalf.
In order to be successful in a constructive dismissal case, an employee will need to show that their employer has either breached an express term of their contract or has breached an implied term of the employment relationship, such as the duty to maintain trust and confidence. This can involve one major breach or a series of minor breaches that, taken together, amount to a fundamental breach. It is also important that the employee resigns in response to the breach, as otherwise the tribunal might find that they have affirmed the contract and tacitly accepted their employer’s conduct.
To be successful in a constructive dismissal claim, an employee will need to demonstrate that the employer’s conduct is so serious that they would be forced to resign immediately. In some cases, it is possible that an employer’s behaviour will be so serious as to make them unable to work in their workplace at all. This could include a reorganisation that has the effect of significantly changing an employee’s role and responsibilities, or even their compensation.
How can an employee prove constructive dismissal?
It is important for employees to keep detailed records of incidents where they believe their employer has behaved in a way that amounts to a constructive dismissal lawyer. This includes any written evidence of the incident, as well as witness statements and other types of supporting documentation. Having this in place will help them in their fight to reclaim the damages they deserve.
There is no definitive test for what might constitute a fundamental breach, as every case will depend on the specific circumstances of the employment contract. However, the type of change or behaviour that will qualify as a fundamental breach will almost always include some kind of direct, adverse impact on the employee’s wages, position and status in the organization.
It might also include a change to their working conditions, such as moving them from one location to another with a lower level of prestige or being demoted, a reduction in their duties and responsibilities, being reassigned to menial or degrading work, harassment calculated to encourage resignation, or the imposition of unreasonable deadlines and expectations.
In addition to the above, it is vital that an employee tries to resolve the situation informally with their employer before seeking legal advice. This is because if an employee does not resign immediately, the tribunal may find that they have affirmed their contract and therefore renounced their right to claim damages in the event of a constructive dismissal.
