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We didn’t really mean it

It can be tricky to determine what constitutes constructive dismissal

By Jeffrey R. Smith 

When it comes to making changes to how things are done, employers should usually feel confident they have the authority to do so, right? After all, it’s their business and they’re the ones running things. If they want employees to do something different or in a different way, it’s within management rights. 

But employers don’t have free reign to change employees’ situations too much. Employers are in a position of power and employees rely on them to make a living, so the balance of power is tipped one way. And, as is a common concept in Canadian employment law, there are checks and balances in place to help even out that power. And one of those checks is the concept of constructive dismissal. 

While employers have the right to make certain changes to an employee’s job and work environment, if it’s anything beyond minor changes, proper notice or consideration must be given to the employee. Legally, it’s accepted that if any fundamental changes are unilaterally made to an employee’s job, it can be considered constructive dismissal — or, in other words, a significant enough change that makes it difficult for an employee to continue working. An employee could quit in such circumstances, but if it’s constructive dismissal, the employer could still be deemed to have breached the employment contract. 

A question that can dog employers is: What’s the threshold for constructive dismissal? And if an employer’s actions are going down that road, can it pull back and avoid such claims? 

Three years ago, an Ontario employer informed a worker it would be changing the hours of his overnight shifts from 8 p.m. to 4:30 a.m. to 10 p.m. to 5:30 a.m. The worker didn’t agree to this change and proceeded to send in his letter of resignation. After receiving the letter, the employer told the worker it wouldn’t implement the new shift hours and he could continue to work the hours he was working. However, the worker refused and said he would only agree if given a written statement his hours would never change. When the employer refused that proposal, the worker filed a claim for constructive dismissal. 

The Ontario Labour Relations Board dismissed the claim on two fronts. First of all, the change in shift hours was a relatively minor one that didn’t fundamentally change the worker’s job. Additionally, shift changes had happened before and should be expected as part of the job — the worker had even completed a report saying he was available for regular shifts any time the employer was open. 

Secondly, the employer never actually implemented the changes. Even if the proposed shift hours change would have constituted constructive dismissal, the employer pulled back when the worker protested in order to save the employment relationship. When the worker refused to continue, it was he who ended his employment, not the employer, said the board: See Oca v. Home Depot of Canada Inc., 2014 CarswellOnt 9906 (Ont. L.R.B.). 

While the situation above didn’t ultimately constitute constructive dismissal, it seems to demonstrate that even if an employer plans to make changes that could be constructive dismissal, it can fix the situation by scratching those plans. As constructive dismissal can be difficult to determine sometimes, it’s good for employers to know that there may be a chance to change there minds, rather than employees’ jobs.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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