Termination of employees is one of the hardest and most legally challenging aspects of being an employer. Terminations can happen one of three ways: by constructive dismissal, termination with cause or termination without cause.
Each form of termination has its own set of legal obligations and requirements for employers. Determining the type of termination depends on an employer’s compliance with employee rights, the employment contract, Employment Standards Act, Human Rights Code and common law. If you are involved in a constructive dismissal claim, our lawyers at Doak Shirreff in Kelowna are qualified to assist both employees and employers.
Constructive Dismissal vs Wrongful Dismissal
Constructive dismissal occurs when an employee resigns from their position due to imposed changes, without warning, or due to a hostile work environment that makes it impossible for the employee to continue with their employment.
Since the resignation is due to the material change or the hostility created, the employee is not voluntarily resigning from their position. Therefore the constructive dismissal is actually a form of termination, which requires reasonable notice. Failure to provide reasonable notice in the circumstance of a constructive dismissal termination can result in a wrongful termination claim.
There are cases that support the notion that a constructive dismissal can be cumulative rather than a singular act, which constitutes a breach of contract. For instance, in the case of a hostile work environment, an employee may be subjected to a number of instances of workplace bullying, harassment or employment discrimination before they feel the need to resign.
Although each singular case of harassment may not constitute constructive dismissal, a prolonged period of harassment can be considered an alteration to the employment contract. In these circumstances, the employee may argue that his employer has breached the fundamental terms of his employment contract. As a result, the employee may claim constructive dismissal.
Constructive Dismissal Claims
Recently our Kelowna lawyers at Doak Shirreff have noticed a trend in Ontario, Alberta and British Columbia to challenge the limiting nature of termination clauses in employment agreements.
Although each constructive dismissal case is dependent on the individual circumstances and facts presented, there are common threads amongst most constructive dismissal claims. Common themes include demotions, change in job responsibilities, a unilateral change in working conditions or to the employment contract, a reduction in pay or in some cases a work relocation.
The courts have unanimously maintained the principal of contra proferentem. This is a doctrine of contractual interpretation that favours the employee when a promise, agreement or term is ambiguous. Since the employer provides the employment contract and the wording, it should be the one that works against the interests of the party who provided the wording and documentation.
Therefore, it is vitally important for employers to ensure that their employment contracts are clear, concise, and unambiguous. Failure to do so may result in the courts interpreting the agreement in favour of the employee and increase the amount of damages awarded in the case of a wrongful termination.
Employment Law, Kelowna Lawyers & Constructive Dismissal
Employment issues in today’s workplace can be complex. Often times, they involve a myriad of federal and provincial statutes, regulations, rules, guidelines, and common law.
Our Kelowna lawyers at Doak Shirreff provide strategic consultation, counsel, advice, and advocacy for both employees and employers. We will take the time to properly understand and address the individual needs of each client. We work with you to explain each step required along the way to move your matter to its proper resolution.