What is Constructive Dismissal? What You Need to Know in BC
Constructive dismissal is another form of wrongful dismissal. It occurs when an employer unilaterally alters a fundamental term of an employment contract without your consent or mutual agreement.
Unilaterally changing a fundamental term of your employment is a breach of contract pursuant to British Columbia’s employment law.
Understanding your protections under employment law is crucial. If you were terminated for refusing to agree to the changes to your position or have resigned because you could no longer work with the changes, a wrongful dismissal claim may be an option for you.
Understanding Constructive Dismissal
Key indicators and examples that could signify a constructive dismissal situation are:
· A reduction in your salary or wages
· Reductions in your commission, bonus, benefits, or pension entitlements
· Experiencing a demotion or a negative shift in job responsibilities
· Being forced into a new work location, especially one that significantly lengthens your commute
· Any introduction of, or increase in, harassment leading to a toxic work environment
· Changes to job title, work hours, shifts, or being put on a temporary layoff without pay. For example, an employer asking you to work longer or scale back hours without your agreement.
If you recognize these signs in your current or recent past employment act promptly. Communicate your concerns to your employer professionally, seek legal advice to understand your rights and the best course of action, and document everything. Constructive dismissal cases hinge on the employer’s fundamental breach of the employment contract including altering material terms without mutual agreement. Such changes can significantly affect your professional and personal life. Keeping track of events and communications between you and your employer may prove helpful if you commence a legal claim.
What steps should I take to build a constructive dismissal case?
In pursuing a constructive dismissal case, you must show that you have made every effort to address the issue with your employer, including filing a formal grievance or otherwise notifying your employer about the problem and attempting to find a resolution.
Should You Resign?
Facing a situation of constructive dismissal is difficult. Trying to discern what is happening is usually emotionally taxing. Sometimes, people are tempted to hand in their resignation letter without much consideration. However, we invite you to pursue the following steps before deciding to resign:
1. Consult a lawyer:
Consult an employment lawyer when you realize you face a constructive dismissal situation. A lawyer can inform you about your rights, negotiating position, potential severance pay, and the best course of action.
2. Understand Your Options:
You can either resign with the intent to claim constructive dismissal or remain employed while seeking legal remedies.
3. Consider the Consequences and Mitigate:
We advise you to act quickly. Delaying action or continuing to work under changed terms may imply your acceptance of the changes, potentially affecting your claim. If you decide to resign, remember that you must mitigate your loss. Therefore, begin searching for new employment opportunities to minimize the financial blow of unexpectedly finding yourself without a job.
In More Detail: Severance, Mitigation, Limitation Period, and Legal Advice
Here’s a breakdown to guide you through the complexities of the constructive dismissal process:
1. Reasonable Notice and Severance Pay Entitlements:
a. Damages for constructive dismissal are typically calculated based on reasonable notice. This entitlement is separate from any contractual provisions and is based on a broader assessment of your employment circumstances. If the wording in your employment contract supports it, the contractual notice provisions can determine this notice period.
b.Upon being constructively dismissed, you are entitled to severance pay, the amount of which is influenced by age, length of service, and position.
c. The minimum severance guaranteed by British Columbia’s Employment Standards Act (the “ESA”) ranges from one week’s pay to eight weeks’ pay. However, you could be entitled to as much as 24 months’ pay under common law.
d.Review your employment contract, as it may determine your severance pay. For the contract’s severance pay provisions to be valid, the terms must meet or exceed the ESC’s minimum requirements.
2. Mitigation and Legal Timelines:
a. Continuing to work under altered terms may signal acceptance of these changes.
b.Mitigation, or taking steps to limit financial losses, is critical during this period.
c. Employees have two years from their termination date to claim their full severance, highlighting the importance of not rushing into decisions without legal counsel.
3. Seeking Professional Advice:
a. Before making any decisions, it is advisable to consult with an employment lawyer to understand the full scope of your rights and the best course of action.
b. Document all changes and communications with your employer, as this can be crucial evidence if legal proceedings are necessary.
c. Be wary of employer-set severance offer deadlines, which may be used as pressure tactics. Remember, you have up to two years to claim your full severance.
Seeking Legal Remedies
Legal remedies for constructive dismissal include filing a lawsuit against your employer or negotiating for compensation. At Stevenson Luchies & Legh, our lawyers can meet with you for a confidential consultation to discuss your situation and advise on your options.
How should I resign if I am experiencing constructive dismissal?
When drafting a resignation letter due to constructive dismissal, ensure that the letter is professionally written, focusing solely on the facts. Refrain from using emotional or rude language. In typical, friendly resignations, it is common for employees to express gratitude and positive reflections on their time with the company.
What is considered an appropriate notice period for resignation in British Columbia?
In British Columbia, it is recommended that employees provide a fair notice period commensurate with the employment situation when resigning. A common practice is to offer a two-week notice, which gives the employer sufficient time to manage the transition and seek a replacement.
Conclusion
You do not have to face this alone. Navigating the legal landscape of constructive dismissal requires a nuanced understanding of your employment contract, your entitlement under common law, and the professional advice of specialized employment lawyers. This comprehensive approach will ensure you are well-equipped to pursue the most effective legal remedies.
We hope you have found this article about constructive dismissal in British Columbia helpful. Here, we have underscored the signs you should watch for and the key steps you should consider in exercising your rights and protections under employment law.
If you believe you have experienced constructive dismissal, take action and protect your rights. If you have any questions, we are here to help. Please call us at 250-381-4040 to schedule an initial interview.
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