Have you been constructively dismissed?

Maybe yes, but often not.

In recent years, there has been a notable rise in allegations of constructive dismissal (CD) within the employment sphere. Despite this trend, the surge in claims doesn’t necessarily correlate with an increase in valid cases. Employment lawyers frequently find themselves in the position of having to inform individuals that their experiences, though negative, do not meet the criteria for constructive dismissal.

Understanding constructive dismissal

Constructive dismissal is often described as an additional hurdle in a wrongful dismissal claim. It arises when an employee seeks damages for wrongful dismissal without being formally terminated. To substantiate a claim of constructive dismissal, the employee must first voluntarily resign and then demonstrate that their employer’s actions compelled them to do so.

Employees typically have two paths to establish constructive dismissal. Firstly, they can show that a single action by the employer amounted to a fundamental breach of the original employment contract. Such actions might include demotion, layoff, suspension (with or without pay), reduction in pay, removal of core job duties, significant changes in work location, or even, albeit rarely, an unwelcome promotion. Secondly, employees may demonstrate that a series of employer actions collectively constituted a fundamental breach of the employment contract. These actions could involve intensified scrutiny, gradual alterations to job responsibilities or compensation, harassment, or the fostering of a hostile work environment.

Crucially, to succeed in proving constructive dismissal, the employee must illustrate a substantial alteration in their workplace that detrimentally affected the original employment relationship. Additionally, they must demonstrate either their objection to the change or the change’s significant nature, compelling them to resign.

While establishing constructive dismissal can be challenging, it’s not unattainable, and employment attorneys frequently handle successful claims. However, they meticulously evaluate the facts of each case to ensure they align with the specific criteria for a valid constructive dismissal claim before proceeding.

What doesn’t constitute constructive dismissal?

The most common reason for employees to explore constructive dismissal claims that ultimately prove invalid is through citing issues like difficult supervisors, micromanagement, fluctuating responsibilities, or scheduling uncertainties as grounds for CD. Often, they label these as “harassment” by their superiors. However, upon consultation with employment counsel, they discover that a generally unpleasant work environment, particularly if it has persisted since the commencement of employment without any sudden or cumulative significant changes, does not meet the threshold for constructive dismissal. While such circumstances may potentially warrant other legal actions against the employer, they typically fall short of constituting a valid constructive dismissal claim.

Takeaway

Though challenging to substantiate, valid claims of constructive dismissal do exist and are regularly litigated successfully. However, before an employee resigns and pursues a constructive dismissal claim, it is imperative that they seek advice from qualified employment counsel. This ensures they do not prematurely pursue an invalid claim, potentially leaving them jobless without recourse for wrongful dismissal damages.

By Filip Szadurski