Don't just quit when faced with constructive dismissal
By AdvocateDaily.com Staff
In the final instalment of a two-part series on constructive dismissal, Toronto employment lawyer Sean O’Donnell discusses why employees should avoid quitting in constructive dismissal situations, if possible.
O’Donnell, principal of SJO Legal Professional Corporation, says he often hears from clients for the first time after they have left their employment.
“That can be a problem,” he says, explaining that plaintiffs have the burden of proving they were constructively dismissed, which opens the way to damages for reasonable notice.
“There are so many pitfalls, and if you’re found to have resigned, you’re entitled to nothing, not even employment insurance,” O’Donnell says.
He understands the temptation to leave when an employer imposes a major change to the employment relationship, or when a series of smaller issues makes an individual’s continued employment intolerable, but he says that it’s usually better to stay in order to keep legal options open.
“So often people come to me and tell me they want to quit, but I tell them to hang on a little longer,” O’Donnell says. “You may feel like the situation is intolerable, but the legal test is not about how you feel, it’s from an objective standpoint.”
He makes an exception for extreme circumstances, such as employees who are sexually assaulted at work or continually harassed to the point that they feel endangered by returning.
In the first part of this series on constructive dismissal, O’Donnell explained how a 2008 decision of the Ontario Court of Appeal (OCA) gives employees three options following an employer’s unilateral amendment to a fundamental term of the employment contract:
- Accept the change, in which case, the employment will continue under the altered terms
- Reject the change and sue for damages if the employer persists in treating the relationship as subject to the varied term
- Reject the change and wait for a response from the employer, who may respond by terminating the employee and offering re-employment on new terms, but if the worker is not fired and allowed to continue working, the employee is entitled to insist on adherence to the terms of the original contract
In most cases, O’Donnell says the third option is the best course of action.
“The hope is that the employer will just fire you because in that case, you’ll move out of the realm of constructive dismissal and start talking about wrongful dismissal,” he says, adding that the certainty of termination makes for a simpler resolution.
“You have a notice period that has to be compensated,” O’Donnell says, noting that the common-law entitlements of long-service employees can be very significant.
He acknowledges that pushing back against an employer can be uncomfortable and that clients often take some convincing to do it.
“There’s nothing wrong with writing to say you don’t agree, as long as you do it in a professional and respectful way,” O’Donnell says.
Getting their objections in writing will help employees and their counsel later if it ever comes to a legal action for constructive dismissal. In cases where alleged harassment played a part, he says it’s usually even more critical that the issue is raised formally before the person’s departure.
“If you haven’t exhausted all of the internal avenues within the company, it’s a difficult case to make,” O’Donnell says.
When individuals seek legal advice before leaving their employment, he will usually hold back from engaging directly with an employer, but will often ghostwrite emails on behalf of clients to express their concerns.
“It can become a bit of a game of chess if the employer is trying to pressure the employee into quitting, while the worker is waiting to be fired,” O'Donnell says.
For part one, where he discussed the legal basics, click here.