When you are an employee, you have many responsibilities regarding your employer and the company for whom you are working.
However, the opposite is also true. Not only will he have to respect your rights during the employment but also if he decides to terminate your contract.
Of course, every company will undergo multiple changes throughout its existence. With those changes, it is possible that your employer may terminate your employment contract. However, such a decision can’t be taken lightly.
Many legal protections are granted to the employees when the employer decides to finish their professional relationship. This is mostly due to the imbalance of power between you and your employer.
Furthermore, if you wish to file a complaint, the first step is to determine which type of dismissal you encountered. Between wrongful and constructive dismissal, there are important differences to understand.
With JuriGo, you can understand the key differences between wrongful and constructive dismissal.
What Is the Difference Between Constructive and Wrongful Dismissal?
Hence, if you have recently been terminated from your employment or if significant changes have occurred in your employment duties and you consider them unfair, that might lead you to wonder whether there is anything you can do to resolve the situation.
In both cases, the first step is to verify if your employment contract has been breached. In that case, you will have the possibility to file a claim to obtain the right financial compensation.
However, if your contract is not breached, that does not mean that you will not have any legal recourse. In fact, your employer might be breaching one of the many rights granted to you in the Employment Standards Act.
If that is the case, the best plan of action will be to file a wrongful or constructive dismissal claim. Although the difference might not be of concern to you, it is important to determine in which situation you currently are. That could be detrimental to your chances of obtaining any compensation you are seeking.
Here are the main differences between wrongful dismissal and constructive dismissal according to Ontario’s law:
Constructive Dismissal
If you wish to file a constructive dismissal claim, you must be able to show that your employer implemented modifications to your occupation without your consent and violated the promises made in your employment contract or against the Employment Standards Act.
For instance, such a claim could be filed if your employer decides to modify a key aspect of your employment, notably:
- Your work duties,
- Your role, or
- Your work location.
Obviously, it must not be conducive to what you have previously agreed on when you signed your employment contract. Such a claim exists because it is possible that the employer is making such changes in order to push to resign.
Therefore, if he successfully forces you to quit your job, the employer might think he was able to save a bit of money by avoiding owed compensation which follows your resignation. Obviously, in that situation, you will be able to file a claim to obtain the money that is owed to you.
Wrongful Dismissal
Furthermore, when it comes to wrongful dismissal, it means that your employer did not comply with every one of your entitlements as an employee once he terminated your employment contract.
It is also important to know that wrongful dismissal refers to improper conduct from the employer when he dismissed you. Such conduct could include the following:
- Harassment in the termination of employment,
- Refusal to help the employee in his employment transition,
- Denial of wages,
- General bad faith in the dismissal, or
- Lack of sufficient notice of termination.
If you wish to file such a claim in Ontario, most of the entitlements are laid out in the Employment Standards Act. However, it is also possible that both you and your employer had agreed upon different entitlements which will be found in your contract. For that, you need to make sure that all the parties signed the document.
| For example, there will be wrongful dismissal in the event that your employer did not grant you your severance pay. It would also be the case if he did not pay the proper amount for that severance pay as per the ESA. |
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In other words, the main difference between constructive dismissal and wrongful dismissal is that claims concerning the latter will mostly handle issues that occur once the employment relationship is severed. However, constructive dismissal will concern issues that arise while still in the employment relationship.
Employer Acting in Bad Faith – What Does It Mean?
Whenever an employer makes the decision to terminate an employee, he will have the obligation to act in good faith when he is dealing with his employees in the manner of dismissal.
Such an obligation has been imposed by the courts because of the imbalance of power between the employer and the employees. If the employer fails to respect such an obligation, it could be considered an actionable wrong.
Therefore, it would be sufficient to result in an award of punitive damages against your previous employer. In other words, you could receive more money because he aggravated the situation.
What does the obligation of good faith include? It mostly includes the obligation of the employer to investigate every allegation of misconduct. It also grants the employee a fair opportunity to respond to allegations.
Furthermore, an employer is prohibited from fabricating grounds for cause or from maintaining unfounded allegations. In simpler terms, the employer must treat his employees respectfully and not take advantage of them. He will be considered in bad faith if he acts like that:
- Failing to conduct a fair investigation,
- Bullying and harassment (including sexual harassment),
- Failing to provide a record of employment,
- Humiliating an employee, and
- Lying to an employee.
Of course, whenever someone claims that his employer acted in bad faith, the court will decide on a case-by-case basis. To do so, it will analyse the circumstances and the conduct of the employment.
Although an employee might be tempted to bring a list of complaints regarding his employer, a claim focusing on bad faith will only look at the manner of dismissal. Hence, if the employer was transparent and upfront, you would not be able to demonstrate bad faith.
You have been subject to bad faith? Find the right lawyer in labour law with the help of JuriGo.
“Unjust Dismissal”: What Is It?
Another type of dismissal that can allow you to file a claim is the unjust dismissal. This dismissal directly refers to the recourse that you can find in the Canadian Labour Code. Hence, this recourse will only be available for certain employees.
More specifically, the employee must work in a workplace that is federally regulated. Furthermore, you must continually work for 12 consecutive months with your employer to be eligible for such a claim. Obviously, you must believe that your dismissal was unwarranted.
What are federally regulated industries? Although there are many examples, here are the main industries:
- Banking,
- Transportation, and
- Telecommunication.
If all the conditions are respected, the Canadian Labour Code will grant you a number of remedies if you are a victim of unjust dismissal. For example, you could be reinstated to your original position. You could also receive the reimbursement of your wages.
If the federal legislation applies to you, you will be entitled to additional protection in cases of unjust dismissal by your employer if you have accumulated 12 months of continuous services and that you are in one of those circumstances:
- You are not a manager,
- You are not covered by a collective agreement, and
- Your dismissal does not stem from economic considerations (lack of work for instance).
Additionally, you will need to file your complaint alleging unjust dismissal at the nearest Labour Program office within 90 days of the date of your dismissal. Therefore, you must make sure to stay within the time limits if you seek compensation.
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Therefore, once your employment contract is terminated, multiple situations can occur. Of course, there is always the possibility that it is based on a justified cause. In such a situation, you will not have any recourse.
However, there are also some situations where your employer might use his power within the company and on you to make decisions that do not respect your rights. In this case, you will be able to seek compensation.
For an employee, it can be difficult to be in front of a judge and demonstrate every element of the claim to obtain compensation. Therefore, it is recommended to seek legal help from a professional lawyer.
In fact, many lawyers specialise their practice in labour law. Not only will they be able to represent you in court, but they could also negotiate with your employer to resolve the situation before heading in front of a judge.
Find a lawyer specialized in labour law in Ontario today by filling up JuriGo’s form for free!