Introduction
If you ask members of the employment bar, they are likely to confirm that there has been an influx of people alleging constructive dismissal (CD) in the past decade. Whatever the cause for this increase, one thing is certain, the increase of CD allegations has not necessarily equated to an increase in valid claims. Unfortunately, a regular part of any employment lawyer’s job is informing potential clients that they, in fact, have not been constructively dismissed, despite their negative experiences at work – having a “mean” boss will not usually suffice.
What is Constructive Dismissal?
CD is colloquially explained as an “extra step” to a wrongful dismissal claim. This is because when an employee wants to claim damages for wrongful dismissal, but they have not yet been terminated, the employee must first prove CD. Most often, to do so, said employee must voluntarily leave their employment. Then, they have the task of proving that their employer’s actions forced them to quit.
An employee generally has two avenues to prove CD. First, they can prove that their employer’s single action equated to a fundamental breach of the original employment contract. These actions can include, but are not limited to, a demotion, layoff, suspension with or without pay, lowering of pay, removal of core job duties, substantial change in work location, and even in rare circumstances an unwanted promotion. Second, an employee can prove that an employer’s cumulative actions amount to a fundamental breach of the original employment contract. These actions can include, but are not limited to, the onset of debilitating scrutiny, incremental changes to job function or compensation, harassment, and the creation of a poisoned work environment.
Importantly, when attempting to establish any form of CD, the employee must show that due to the actions of their employer, there has been a significant change in their workplace that affected their original employment relationship adversely. Furthermore, the employee needs to prove that they objected to the change and/or the change was so substantial that it forced them to quit their job. Lastly, any objections to changes in workplace circumstances must usually be prompt or the employee may have been deemed to accept said changes.
Having said this, it is not impossible to prove CD, and employment counsel do regularly undertake successful CD claims. However, to do so, employment lawyers ensure that the facts of the case before them meet the very specific parameters of a valid CD claim before they agree to act on behalf of the client.
What is Not Constructive Dismissal?
From my experience (and I am very open to differing opinions), the second avenue to proving CD is the one often leading employees to inquire about CD claims that turn out to be invalid. Employees will cite difficult bosses, micromanagement, unstable responsibilities and scheduling, or any host of other “cumulative” issues as grounds for CD. This is often in the form of an allegation of “harassment” against their boss. However, when they approach employment counsel with the potential claim, the lawyer has the unfortunate job of informing the employee at issue that a generally unpleasant work environment is not grounds for a valid CD claim. This is especially so if the unpleasant nature of the work environment was present since the employee began working, with no sudden or cumulative onset of substantial changes. Although these circumstances may potentially lead to other avenues of legal recourse against an employer, they are commonly not enough for a successful claim of CD.
Takeaway
Although difficult to prove, valid CD claims are possible, and are regularly litigated successfully – CD is a robust protection for employees when wielded appropriately. However, before an employee decides to quit their job and file a CD claim, it is crucial that they speak to qualified employment counsel. This is to ensure that said employee does not prematurely pull the trigger on a potentially invalid claim, leaving them unemployed without the prospect of any wrongful dismissal damages.