To watch & listen to this presentation as a webinar visit

CLEONetwww.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.

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.

Constructive dismissalHarassment, bullying and discrimination at Work

JUSTICE

@ work

March 26, 2010By Karen McClellan

JUSTICE@work Lawyer

JUSTICE@work

Presented by

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

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

Topics Covered

1. What is constructive dismissal

2. What are your legal remedies

JUSTICE

@ work

JUSTICE

@ work

What is Constructive Dismissal?

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

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

Triggering Constructive Dismissal

Not every change = constructive dismissal

To be considered constructive dismissal, thechange must be:

JUSTICE

@ work

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

Triggering Constructive Dismissal

Not every change = constructive dismissal

To be considered constructive dismissal, thechange must be:

JUSTICE

@ work

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

Triggering Constructive Dismissal

Not every change = constructive dismissal

To be considered constructive dismissal, thechange must be:

JUSTICE

@ work

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

Triggering Constructive Dismissal

Not every change = constructive dismissal

To be considered constructive dismissal, thechange must be:

JUSTICE

@ work

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

Was this considered when the job began?

1. In contract?

2. Discussed at time of hiring?

3. Common in the industry?

4. Company practice or policy?

5. Duties/hours set or flexible?

JUSTICE

@ work

Change must be NEW

Was this considered when the job began?

1. In contract?

2. Discussed at time of hiring?

3. Common in the industry?

4. Company practice or policy?

5. Duties/hours set or flexible?

JUSTICE

@ work

Change must be NEW

Was this considered when the job began?

1. In contract?

2. Discussed at time of hiring?

3. Common in the industry?

4. Company practice or policy?

5. Duties/hours set or flexible?

OR OR

JUSTICE

@ work

Change must be NEW

Was this considered when the job began?

1. In contract?

2. Discussed at time of hiring?

3. Common in the industry?

4. Company practice or policy?

5. Duties/hours set or flexible?

OR OR

JUSTICE

@ work

Change must be NEW

Was this considered when the job began?

1. In contract?

2. Discussed at time of hiring?

3. Common in the industry?

4. Company practice or policy?

5. Duties/hours set or flexible?

OR OR

OR

Change must be NEW

Was this considered when the job began?

1. In contract?

2. Discussed at time of hiring?

3. Common in the industry?

4. Company practice or policy?

5. Duties/hours set or flexible?

OR OR

OR

Change must be NEW

Change must be MAJOR

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)

JUSTICE

@ work

TEST: A reasonable person would think a key term of employment has been changed

Change must be MAJOR

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 be MAJOR

Some changes will NOT result in constructive dismissal

JUSTICE

@ work

Change must be MAJOR

Change NOT ACCEPTED

• Acceptance can be explicit or implicit– Verbal or Written– Actions

• You can’t wait too long to decide whether you will accept the change

JUSTICE

@ work

Change NOT ACCEPTED

Factors considered by the Court

Objective approach based on all the circumstances

1. Was there a significant change to the employment agreement imposed by the Employer?

2. Whether employee accepted the change

3. Whether employer acted in good faith and fairly

4. In some cases:Intent of Employer: Accidental or Intentional

Whether legitimate business reasons for the change

Factors considered by the Court

Objective approach based on all the circumstances

1. Was there a significant change to the employment agreement imposed by the Employer?

2. Whether employee accepted the change

3. Whether employer acted in good faith and fairly

4. In some cases:Intent of Employer: Accidental or Intentional

Whether legitimate business reasons for the change

Factors considered by the Court

Objective approach based on all the circumstances

1. Was there a significant change to the employment agreement imposed by the Employer?

2. Whether employee accepted the change

3. Whether employer acted in good faith and fairly

4. In some cases:Intent of Employer: Accidental or Intentional

Whether legitimate business reasons for the change

Factors considered by the Court

Objective approach based on all the circumstances

1. Was there a significant change to the employment agreement imposed by the Employer?

2. Whether employee accepted the change

3. Whether employer acted in good faith and fairly

4. In some cases:Intent of Employer: Accidental or Intentional

Whether legitimate business reasons for the change

Factors considered by the Court

Objective approach based on all the circumstances

1. Was there a significant change to the employment agreement imposed by the Employer?

2. Whether employee accepted the change

3. Whether employer acted in good faith and fairly

4. In some cases:Intent of Employer: Accidental or Intentional

Whether legitimate business reasons for the change

Exceptions

1. Worker misconduct IF change is discipline

2. Contract permits change

3. Alternate job is offered

JUSTICE

@ work

Exceptions

1. Worker misconduct IF change is discipline

2. Contract permits change

3. Alternate job is offered

JUSTICE

@ work

Exceptions

1. Worker misconduct IF change is discipline

2. Contract permits change

3. Alternate job is offered

JUSTICE

@ work

Minor Justified or Accepted Changes

- Personality conflict at work (minor) - Disputed performance evaluation- Disciplinary actions of employer if warranted

and reasonable in circumstances- Slight change in hours, duties etc or a

change that you accepted in writing or by continuing to work with changes

- Change in work conditions that was foreseeable and could be expected at the time of hiring

JUSTICE

@ work

Situations that are NOT constructive dismissal

Humiliating treatment

Includes:• Unprofessional and derogatory comments

– Includes Human Rights Code grounds (i.e. gender, race, disability, religion, etc) AND other grounds not in the Human Rights Code

• Sexual harassment • Discrimination • Threats • Physical violence

Humiliating treatment

Includes bullying and harassment by:

• Boss or supervisor

• Co-workers

• Third parties (ex. customers of employer)

JUSTICE

@ work

Humiliating treatment

Who is responsible?• The employer is obliged to ensure a workplace

that is conducive to the well-being of its employees and not hostile.

• Workers should take steps to inform management or supervisors of the harassment or bullying so that the Employer has an opportunity to take corrective measures

JUSTICE

@ work

Cannot persevere

Humiliating Treatment1. That undermines employee’s authority/damaging to

morale

2. That is abusive, unfair or harassing and is NOT condoned

• TEST: Whether the conduct of the employer is such that a reasonable person should not be expected to persevere.

JUSTICE

@ work

Accept, Quit, Work under Protest

• A worker must decide within a reasonable time (usually w/in 10 days) to either

1) Accept the change; OR

2) Consider the contract at an end AND either

a) Quit OR

b) Work under protest (mitigate)

Get legal advice before making your decision

JUSTICE

@ work

Accept, Quit, Work under Protest

Accept the Change:• If you accept the change, in writing or by

your conduct (i.e. continuing to work with changes) then you have condoned the change and there is no constructive dismissal

JUSTICE

@ work

Accept, Quit, Work under Protest

Dispute the Change & Quit• An employee will generally not be

considered to have failed to mitigate loss of earnings by quitting, in the following circumstances:

–Poisoned work environment due to harassment, humiliating and unfair treatment, or human rights discrimination

JUSTICE

@ work

Accept, Quit, Work under Protest

Dispute the Change ANDWork under protest – to mitigate damages• Get legal advice first• Worker may be expected to work in changed

job in order to mitigate loss of earnings• Request information about changes• If you dispute the change but are willing to

work under protest in order to mitigate your losses, indicate this clearly and in writing

JUSTICE

@ work

When does the Constructive Dismissal actually take place?

The clock starts running• When the Employee resigns; or• When the Employee communicates a refusal to

accept the change but works under protest & to mitigate damages

2 Year Limitation Period

2 years to commence an action in court for constructive dismissal

Burden of Proof

• In a constructive dismissal action, the worker must prove a fundamental breach in the employment agreement occurred

• In cases involving humiliating treatment, the employee must prove that a reasonable person would not be expected to persevere in the circumstances

JUSTICE

@ work

Employer obligations under law

• Harassment & discrimination free workplace under the Ontario Human Rights Code

• Policies and practices in place to ensure a workplace free from violence or threat (OHSA)

• Policies and practices in place to ensure a workplace free from harassment and bullying (OHSA)

• Termination Pay and/or Severance Pay under ESA if constructive dismissal

JUSTICE

@ work

Worker obligations under law

• Treat workers & co-workers with dignity and respect

• Respect human rights of employer & coworkers

• Comply with company policies on human rights, harassment and civility in the workplace

JUSTICE

@ work

What to do if you are being harassed/bullied?

• Seek legal advice• Check employer/company policy manual

and follow the steps for making a complaint

• If no policy, make a written complaint to your employer – usually direct to Human Resources Dept. – (do not write in the heat of the moment) – sign

& date, and keep a copy

JUSTICE

@ work

What to do if you are being harassed/bullied?

Legal Options:

• Human Rights Application

• OHSA – NEW!

• ESA: Resign and bring an ESA claim for termination and/or severance pay

• Court: Resign and bring an action in court

JUSTICE

@ work

Human Rights Application

Human Rights Code (Ontario)– Time Limit: within 1 year of incident/s– You do not have to quit in order to bring a

human rights application

Canadian Human Rights Act (fed. reg. jobs)– Time Limit: within 1 year of incident/s– You do not have to quit in order to bring a

human rights application

JUSTICE

@ work

Occupational Health & Safety Act (OHSA) – Bill 168

• Applies to most Ontario workers - effect June 15, 2010• Requirements of Employer

– Establish policies, practices and provide information on: workplace harassment & violence

– Ensure complaint and investigation mechanisms are in place– Ensure worker is working in a safe place pending the completion of an

investigation– Ensure measures for immediate assistance in cases of violence– Recognize and protect workers from domestic violence in workplace– Worker can refuse work if worker believes s/he is in danger of

workplace violence

• Enforced by Ministry of Labour Inspectors– Employees will need to participate in the complaints and investigation

process established by employer

JUSTICE

@ work

Employment Standards Act Claim

• An employee who is constructively dismissed can bring a claim for termination and/or severance pay under the ESA

• Time Limit: file claim within 6 months of dismissal or when pay became owing

JUSTICE

@ work

Questions and discussion

JUSTICE

@ work

This webinar was brought to you by CLEONet

For more information visit the Employment and Work section of CLEONet

at www.cleonet.ca

For more legal information webinars visit:http://www.cleonet.ca/legal_education_webinars