Failure to follow through may not necessarily prevent constructive dismissal
Question: If an employer tells an employee about a significant change to the job that the employee protests but the employer doesn’t follow through, can that be considered constructive dismissal?
Answer: Generally speaking, constructive dismissal arises where an employer makes a unilateral change to an employee’s conditions of employment that substantially alters the conditions of employment, or multiple changes that together amount to a substantial alteration of the conditions of employment.
When an employee is informed that her employer is making a significant change to her employment, she has two options: she can either agree to the new conditions, or she can refuse to agree to them. If the employee refuses to agree, and the employer imposes the conditions anyway, the employee can then proceed as if she has been constructively dismissed and bring a claim for wrongful dismissal.
In the case of an employer that does not follow through with the change after an employee has protested, there likely has not been a constructive dismissal. However, as with most employment law questions, the answer truly depends on the specific facts of the case. The specific nature of the change, the manner in which the change is communicated to the employee, and the timing of the employee’s claim of constructive dismissal will all form part of the analysis.
In order to avoid uncertainty, employers who have decided not to go ahead with proposed changes to an employee’s conditions of employment should confirm this decision in writing rather than just failing to follow through.
The employee may view the employer’s silence in response to her protest as an indication that it is imposing the changes despite her protest, or she might be unsure whether or not the changes are going to be implemented. The employer’s failure to communicate its decision to the employee could therefore be seen as causing the employee undue stress and anxiety, and could potentially provide the employee with the basis to argue for an award of aggravated and punitive damages.Stuart Rudner is a founding partner of Rudner MacDonald LLP, a Toronto-based employment law firm. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell, a Thomson Reuters business (see www.carswell.com for more information or to order your copy). He can be reached at email@example.com. Stuart gratefully acknowledges the assistance of Cody Yorke with the preparation of this article.