An employee-employer relationship can sometimes be complex, especially as time goes by.
While some employees develop a more amicable rapport with their boss, others can find themselves in a somewhat more tense situation that has the potential to escalate to dismissal. However, facing dismissal is not always obvious or as direct as one would assume – and identifying the steps leading to one’s dismissal can turn out to be a complex endeavor.
In Quebec, constructive dismissal is unfortunately all too common.
This "subtle" way of terminating an employee's employment relationship is illegal, but it is not always easy to recognize. Many employees find themselves in this situation without even knowing it.
Do you think you’ve been victim of a constructive dismissal? In any case, JuriGo will explain in the following what the law qualifies as a constructive dismissal.
How does the law define “Constructive dismissal”?
Constructive dismissal is a concealed way to terminate an employment.
Constructive dismissal is a tactic often used by employers to terminate an employee when they are not legally permitted to do so due to the length of the employee's service or a lack of just cause. It allows an employer to bypass the proper process leading up to termination and can make it more convenient for them to dismiss an employee.
So, what exactly does constructive dismissal entail?
The term "constructive dismissal" refers to situations in which an employer has not directly terminated an employee, but instead has violated a major aspect of their employment contract, unilaterally changed the terms of their employment, or expressed a clear intention to do so, thus forcing the employee to resign.
This form of dismissal is sometimes known as "disguised dismissal" or "resigning with cause" because it often arises when an employer offers the employee the choice of leaving or accepting a significant, unilateral change to a fundamental term or condition of their employment.
Whether or not a constructive dismissal has occurred is determined based on an objective assessment of the employer's conduct, rather than solely on the employee's perception of the situation.
This form of termination often involves the employer gathering evidence against an employee, such as by unilaterally modifying the terms of their employment contract to make it increasingly difficult for the employee to meet their job requirements.
In order to establish a case of constructive dismissal, three conditions specified by the law must be met. These conditions are cumulative and must be present in order to identify a constructive dismissal :
1. Unilateral changes. For constructive dismissal to occur, the employer must have unilaterally changed the conditions of the employee's employment, meaning that the employer has taken it upon themselves to make significant alterations to the employee's working environment that have tangible effects on their daily work.
It is crucial to note that these changes must be made without the employee's agreement. If both the employer and the employee have mutually agreed to the changes, they do not qualify as constructive dismissal.
2. Changes made to essential components of the employee’s working conditions. The changes made have to affect the main aspects of the workers employment experience. Essential working conditions can be things like : salary, duries, vacations etc.
3. Substantial modifications. Proving a case of constructive dismissal also requires that your working conditions have been significantly altered, so that they are no longer the same.
Again, the core principle of constructive dismissal is the unilateral action taken by the employer. This means that as an employee, you cannot consent to the changes made without forfeiting your right to recourse. In other words, if you agree to the changes, you are essentially accepting them and cannot later claim constructive dismissal.
Are you forfeiting your right to seek remedy if you have resigned?
It is best to consult a lawyer before making the decision to resign if you believe that your employer is pushing you out the door. However, resigning does not deprive you of the remedy of constructive dismissal, because your lawyer will be able to prove that your resignation was caused by the combination of the three criteria mentioned above.
What can you do? Remedies for unjust and unreasonable Dismissal
Under Quebec law, constructive dismissal is generally equated to dismissal without just and sufficient cause under the Act Respecting Labour Standards. Article 124 of the Act provides for this remedy, which requires the employee to have two years of continuous service and applies to any situation where such an employee is dismissed without just and sufficient cause.
In order to benefit from the remedy provided for under the Act respecting labor standards, the employee must have: been dismissed (meeting the constructive dismissal requirement listed above), be an employee covered by the Act and not be covered by a collective agreement. The employee has a 45-day delay, following the alleged dismissal within which they have to file their complaint.
What is considered just and sufficient cause? An employer has to meet several conditions in order to reach this threshold. irstly, to justify an employee's "incompetence," an employer must ensure that the employee is aware of the expectations placed upon them and that any shortcomings have been clearly communicated to them in case of underperformance.
The employee must also have received support from the employer to make improvements as well as a reasonable adjustment period depending on the circumstances. Finally, the employer must inform the employee that he or she is at risk of dismissal if no improvement is made. If these guidelines are not respected, the dismissal will not be considered as having sufficient cause.
What remedies are available for constructive dismissal? The remedies available for constructive dismissal are those set out in the Act respecting labour standards, although the judge of the Administrative Labour Tribunal has certain discretionary powers in the matter of remedy. Here are the main remedies that the tribunal can award!
Reinstatement of the employee. This is the general rule that the law provides. The judge will order the reinstatement of the employee in the workplace where this is possible given the practical and psychological considerations of the employee concerned.
In the case of constructive dismissal following abusive manoeuvres, for example, the bond of trust may have been permanently broken between the employee and the employer, thus preventing any reintegration.
Compensation equivalent to salary. When reintegration into the workplace is not indicated, the judge may award compensation equivalent to the wages lost between the period of dismissal and the judgment. The compensation will therefore be the equivalent of the wages lost during that period.
Discretionary power of the Administrative Labour Tribunal. As mentioned above, the tribunal has broad discretionary power to reduce certain penalties imposed by the employer. For example, it may reduce a dismissal to a temporary suspension or prefer damages to reinstatement.
What is the duty to mitigate damages? If you have been the victim of a dismissal, whether constructive or not, you have an obligation as an employee to mitigate the damages you have suffered. This means that you cannot sit at home and wait for your claim to be resolved.
Mitigation of damages is a general obligation that applies in all injury situations, whether they are personal, material or moral. It is an obligation that obliges an injured party to take action to reduce the consequences caused by the fault of another.
In the case of a breach of the employment relationship, this means that the dismissed employee must actively try to find a job similar to the one he or she lost and must not refuse reasonable job offers. However, he or she is not required to accept an offer that is significantly less than his or her previous terms of employment.
Prohibited Practices According to the Act Respecting Labour Standards
The remedy for dismissal without just and sufficient cause is not the only one found in the Act respecting labour standards. In fact, section 122 of this Act provides for a remedy against certain prohibited practices committed by the employer.
The prohibited practices mainly concern the age of retirement, vacations and statutory holidays, but especially the protection of pregnant women!
As an employee, it's important to know your rights when it comes to prohibited practices under the Act respecting labour standards. For example, did you know that an employer cannot dismiss you solely based on your age or retaliate against you for taking leaves authorized by law?
Section 84 of the LSA specifically prohibits forced retirement based on age and any form of retaliation or punishment solely based on age. Additionally, pregnant employees are protected from any form of retaliation, whether it be a change in working conditions or a dismissal. If you've experienced any of these prohibited practices, you have a limited time to file a complaint with the Commission to protect your rights.
Fortunately, the law provides several remedies for prohibited practices, including reinstatement, cancellation of sanctions, and compensation for lost wages. Moreover, the Act respecting labour standards presumes in favor of the employee to make it easier to prove a violation of rights against the employer.
If you suspect that you've been the victim of a prohibited practice, don't hesitate to consult a JuriGo partner employment lawyer. They can explain in detail how the prohibited practice remedy works and help you protect your rights.
Can you employer justify firing you?
Now that you know the main remedies against unlawful dismissal, it is important to qualify the employer's right to terminate your employment. In fact, there are circumstances that allow an employer to legally terminate an employment contract with an employee. However, the employer must respect specific obligations!
After 2 years of continuous service, the employer can only terminate the employment if there is a serious reason. This protection is granted by section 124 of the Act respecting labour standards. Moreover, the onus is on the employer to prove that the cause was just and sufficient.
When the employee has less than 2 years of continuous service, the employer does not have to respect the requirement of serious cause, but it has the obligation to give a sufficient period of leave in relation to the circumstances of the employment in order to give the employee time to find a similar job. This notice period is the legal term for the famous "two weeks' notice", which may in fact be shorter or longer depending on the circumstances and the length of time spent at the job.
In the case of serious cause for dismissal, however, the employer is under no obligation to give notice. In fact, in the case of gross negligence on the part of the employee or an illegal act committed, the employer may terminate the employment without notice or notice.
Why can the employer terminate the employment contract in these ways?
Because the Civil Code provides that the employment contract is for an indefinite period of time and that either party, the employer or the employee, may terminate the contract at any time as long as they give the other party sufficient notice (notice of termination).
Constructive Dismissal in the rest of Canada
What does constructive dismissal look like in the rest of Canada – in provinces such as Ontario, British Columbia, and Alberta.
Constructive Dismissal in Alberta – In Alberta a lot of importance is given to the role that work plays in people’s lives. The justice system accentuates the essential role of an enjoyable job to support a good quality of time. In doing so, the province also ops to lower the standard needed to achieve to seek remedy for an alleged constructive dismissal.
The change needs to yield a fundamental or substantial change in the employee’s working conditions. This demonstrates a wider criterion given that historically a fundamental change had to be demonstrated.
Constructive Dismissal in Ontario – A similar approach is used. There is also a requirement from the employee to discuss the alleged constructive dismissal with the employer prior to seeking remedy in front of the courts.
Constructive Dismissal in British-Colombia – In British Columbia, constructive dismissal is governed by common law and is not specifically defined in the province's employment standards legislation.
However, the courts have established certain criteria that must be met for a claim of constructive dismissal to succeed. These criteria include a significant breach of the employment contract, a unilateral change to the employee's job conditions, and an intention on the part of the employer to force the employee to resign.
To be compensated or reinstated consult a labour lawyer now!
The Act respecting labour standards provides strong protection for employees' rights, including protection against unjustified dismissal.
If you find yourself in this situation, know that you are not alone and there are professionals who can support you. Contact JuriGo to connect with an experienced employment lawyer and explore your remedies for constructive dismissal.
Simply fill out the form at the bottom of the page to be referred to a lawyer in your area who specializes in wrongful dismissal.
There's no obligation to contact a lawyer, so don't hesitate – trust JuriGo for expert guidance. Make the most of your rights as an employee!