The threshold of constructive dismissal
Question: If any employee disagrees with significant changes to her job but continues working, how long can the employee work with the changes before it can be assumed the changes are accepted and there is no constructive dismissal?
Answer: An employee can be found to have consented to unliterally imposed changes to the terms and conditions of their employment. There are no grounds for a claim of constructive dismissal where such consent can be made out. A determination as to how long it takes to establish this consent is specific to the circumstances of each case. Accordingly, there is not a single timeframe of universal application that can be relied upon.
That said, some general principles can be established. The test for a determination of employee consent is objective. In other words, the court will ask whether a reasonable person in the position of the parties would believe that the employee has agreed willingly to the imposed changes. Courts have further described this test as the question of whether a reasonable “trial period” has occurred. An employee cannot be found to have accepted changes in the terms and conditions of their employment unless they are fully aware of what those changes involve. In order for a reasonable trial period to be established, the employee must be found to have sufficient time to assess the suitability of the changes to the terms and conditions of their employment.
Accordingly, the finding of a reasonable trial period length will vary with the circumstances of each case, with emphasis placed on the type of change that triggered the right to claim constructive dismissal and the personal circumstances of the employee. Courts have found multiple-month trial periods to be appropriate when a change constitutes a significant alteration to the terms and conditions of employment.
Although the question of reasonable trial period length is context-specific, it is clear that consent will not be made out if an employee continues to work while explicitly protesting the changes to the terms and conditions of their employment. In the event that the protesting employee sues their employer for constructive dismissal, that employer cannot claim to have been “surprised” by the act or to have believed that the employee consented to the changes. That said, there is also authority to suggest that an employee must protest consistently. If an employee initially protests changes to the terms and conditions of their employment but subsequently goes silent, an argument exists that they have consented to those changes.
Leah Schatz is a partner with MLT Aikins LLP in Saskatoon. She can be reached at (306) 975-7144 or [email protected]