constructive dismissal

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  1. 1. To watch & listen to this presentation as a webinar visit CLEONet www.cleonet.ca CLEONet is a web site of legal information for community workers and advocates who work with low-income and disadvantaged communities in Ontario.
  2. 2. About our presenter Karen McClellan leads the JUSTICE@work project at the Community Legal Clinic Simcoe, Haliburton, Kawartha Lakes.As a Staff Lawyer, Karen practices employment and human rights law, with a focus on low-income and vulnerable workers. Her clients include migrant farm workers and live-in caregivers. She has presented on the legal challenges facing workers to community groups, regional clinic training conferences, and provincial and national symposiums. She also served on of the Ontario Bar Association Taskforce on Wrongful Dismissal.
  3. 3. Constructive dismissal Harassment, bullying and discrimination at Work March 26, 2010 By Karen McClellan JUSTICE@work Lawyer JUSTICE @ work
  4. 4. JUSTICE @work Presented by
  5. 5. Is this presentation for you?
    • You are an Ontario worker who has been fired or feel forced to quit your job
    • OR
    • Your are an advocate, service provider or ally that a worker or workers may turn to if fired or facing other problems at work
    JUSTICE @ work
  6. 6. Disclaimer
    • This is not a substitute for legal advice.
    • If you need legal assistance, call Legal Aid Ontario at 1-800-668-8258 and ask to be referred to your community legal clinic.
    JUSTICE @ work
  7. 7. Topics Covered
    • What is constructive dismissal
    • What are your legal remedies
    JUSTICE @ work
  8. 8. What is Constructive Dismissal? JUSTICE @ work
  9. 9. What is Constructive Dismissal?
    • Unilateral & fundamental breach of contract
    • An employment agreement (written or verbal) cannot be changed by the Employer or Employee without agreement by both parties to the change
    JUSTICE @ work
  10. 10. Unilateral Change to Employment
    • Major change in job:
    • Responsibilities, tasks, etc
    • Reduction in pay
    • Change in benefits
    • Demotion
    • Loss of hours
    • Relocation
    • Humiliating and unfair treatment; bullying and harassment
    JUSTICE @ work
  11. 11. Triggering Constructive Dismissal
    • Not every change = constructive dismissal
    • To be considered constructive dismissal, the
    • change must be:
    Was not contemplated at the time of entering into the contract of employment (written or verbal);Results in a major breach of contract and repudiates the contract;You did not condone or accept the change. NEW MAJOR NOT ACCEPTED JUSTICE @ work
  12. 12. Triggering Constructive Dismissal
    • Not every change = constructive dismissal
    • To be considered constructive dismissal, the
    • change must be:
    Was not contemplated at the time of entering into the contract of employment (written or verbal);Results in a major breach of contract and repudiates the contract;You did not condone or accept the change. NEW MAJOR NOT ACCEPTED 1 JUSTICE @ work
  13. 13. Triggering Constructive Dismissal
    • Not every change = constructive dismissal
    • To be considered constructive dismissal, the
    • change must be:
    Was not contemplated at the time of entering into the contract of employment (written or verbal);Results in a major breach of contract and repudiates the contract;You did not condone or accept the change. NEW MAJOR NOT ACCEPTED 1 2 JUSTICE @ work
  14. 14. Triggering Constructive Dismissal
    • Not every change = constructive dismissal
    • To be considered constructive dismissal, the
    • change must be:
    Was not contemplated at the time of entering into the contract of employment (written or verbal);Results in a major breach of contract and repudiates the contract;You did not condone or accept the change. NEW MAJOR NOT ACCEPTED 1 2 3 JUSTICE @ work
  15. 15.
    • Was this considered when the job began?
    • In contract?
    • Discussed at time of hiring?
    • Common in the industry?
    • Company practice or policy?
    • Duties/hours set or flexible?
    Change must beNEW 1 JUSTICE @ work
  16. 16.
    • Was this considered when the job began?
    • In contract?
    • Discussed at time of hiring?
    • Common in the industry?
    • Company practice or policy?
    • Duties/hours set or flexible?
    Change must beNEW 1 JUSTICE @ work
  17. 17.
    • Was this considered when the job began?
    • In contract?
    • Discussed at time of hiring?
    • Common in the industry?
    • Company practice or policy?
    • Duties/hours set or flexible?
    Change must beNEW OR OR 1 JUSTICE @ work
  18. 18.
    • Was this considered when the job began?
    • In contract?
    • Discussed at time of hiring?
    • Common in the industry?
    • Company practice or policy?
    • Duties/hours set or flexible?
    Change must beNEW OR OR 1 JUSTICE @ work
  19. 19.
    • Was this considered when the job began?
    • In contract?
    • Discussed at time of hiring?
    • Common in the industry?
    • Company practice or policy?
    • Duties/hours set or flexible?
    Change must beNEW OR OR OR 1
  20. 20.
    • Was this considered when the job began?
    • In contract?
    • Discussed at time of hiring?
    • Common in the industry?
    • Company practice or policy?
    • Duties/hours set or flexible?
    Change must beNEW OR OR OR 1
  21. 21. Change must beMAJOR
    • Common changes that are major:
      • Reduction in Salary/Pay
      • Demotion
      • Removal of Responsibilities and Core Functions
      • Lay-off
      • Change of Job Duties
      • Change in Benefits (Bonuses, Mat Leave Policy etc)
    2 TEST :A reasonable personwould think a key term of employment has been changed Change must beMAJOR JUSTICE @ work
  22. 22.
    • Examples:
      • Removal of secondary duties on a temporary basis
      • Minor change in duties due to transfer to new location but same position
      • A very minor change in pay
      • Company restructuring
      • Reassignments & Relocation
    Change must beMAJOR 2 Some changes willNOTresult in constructive dismissal Change must beMAJOR JUSTICE @ work
  23. 23. ChangeNOT ACCEPTED
    • Acceptance can be explicit or implicit
      • Verbal or Written
      • Actions
    • You cant wait too long to decide whether you will accept the change
    3 ChangeNOT ACCEPTED JUSTICE @ work
  24. 24. Factors considered by the Court
    • Objective approach based on all the circumstances
    Was there a significant change to the employment agreement imposed by the Employer? Whether employee accepted the change Whether employer acted in good faith and fairly In some cases: Intent of Employer: Accidental or Intentional Whether legitimate business reasons for the change
  25. 25. Factors considered by the Court
    • Objective approach based on all the circumstances
    Was there a significant change to the employment agreement imposed by the Employer? Whether employee accepted the change Whether employer acted in good faith and fairly In some cases: Intent of Employer: Accidental or Intentional Whether legitimate business reasons for the change
  26. 26. Factors considered by the Court
    • Objective approach based on all the circumstances
    Was there a significant change to the employment agreement imposed by the Employer? Whether employee accepted the change Whether employer acted in good faith and fairly In some cases: Intent of Employer: Accidental or Intentional Whether legitimate business reasons for the change
  27. 27. Factors considered by the Court
    • Objective approach based on all the circumstances
    Was there a significant change to the employment agreement imposed by the Employer? Whether employee accepted the change Whether employer acted in good faith and fairly In some cases: Intent of Employer: Accidental or Intentional Whether legitimate business reasons for the change
  28. 28. Factors considered by the Court
    • Objective approach based on all the circumstances
    Was there a significant change to the employment agreement imposed by the Employer? Whether employee accepted the change Whether employer acted in good faith and fairly In some cases: Intent of Employer: Accidental or Intentional Whether legitimate business reasons for the change
  29. 29. Exceptions
    • Worker misconductIFchange is discipline
    • Contract permits change
    • Alternate job is offered
    JUSTICE @ work
  30. 30. Exceptions
    • Worker misconductIFchange is discipline
    • Contract permits change
    • Alternate job is offered
    JUSTICE @ work
  31. 31. E