Claims such as harassment, constructive dismissal tougher to prove if employer is unaware of situation
By Stuart Rudner
In my practice, I have seen many employees inadvertently give up their rights by resigning without taking the time to obtain legal advice and understand the consequences of their actions.
The reality is individuals that have potential claims for things such as constructive dismissal or harassment may put themselves in a weaker position if they simply resign without raising their concerns.
Often, employees become so frustrated by what is happening at work, be it ongoing harassment, marginalization, diminution of responsibilities or reductions in compensation, they decide to simply give up and move on. However, they will be in a stronger position, legally, if they raise their concerns, give their employer the opportunity to address them and then respond accordingly. In some cases, I have seen employers receive an aggressive demand letter from counsel for a former employee and, in response, legitimately state they were completely unaware of the circumstances that led to the resignation. They may also state that, had they known of the concerns, they would have addressed them. Whether or not that is true, the employee has lost the opportunity to test.
A constructive dismissal is, generally speaking, the unilateral imposition of substantial changes to a fundamental term of the employment relationship. Of course, if the employee genuinely accepts the changes, then there is no claim to be made.
When I am consulted by employees unhappy with changes that have been imposed to their employment relationship, I coach them through the process. The first thing I tell them is they should not resign. It is critical they raise their concerns and make it clear to the employer they do not accept the changes in question. This will effectively put the employer on notice of the concerns, and also of the potential claim. Simply quitting does not achieve either of those goals.
While courts will not necessarily hold an employee to a resignation that is made in haste or out of anger, it is not a risk worth taking. Rather, the employee should raise the concerns, as mentioned above, and allow the employer the opportunity to respond. In some cases, the employer will become aware of a situation it was previously unaware of, such as ongoing harassment, and take steps to address it. In others, it may realize it will not be able to proceed with the proposed implementation of changes to the employment relationship, and will reconsider.
Either way, the chances of the situation being rectified are dramatically improved. In other cases, the employer will take a hard line and refuse to correct the situation. If that is the case, and if the employee has a legitimate claim, then the employer's refusal to address it will only make the employee's case stronger.
Furthermore, if the employee raises a concern and makes it clear she does not accept proposed changes to the employment relationship, the employer may take the more aggressive route of terminating the employment relationship. While this is certainly not an ideal situation, it alleviates much of the uncertainty caused by a constructive dismissal, where the employee has the onus of proving she was constructively dismissed. If the employer dismisses her outright, there is no uncertainty.
Stuart Rudner is an HR lawyer and a founding partner of Rudner MacDonald LLP, a Toronto-based firm specializing in Canadian employment law. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at firstname.lastname@example.org. You can also follow him on Twitter @CanadianHRLaw and join his Canadian HR Law Group on LinkedIn.