This webinar is brought to you by
CLEONet
www.cleonet.ca
CLEONet is a web site of legal information
for community workers and advocates who
work with low-income and disadvantaged
communities in Ontario.
About our presenter…
Karen McClellan leads the JUSTICE@work project at the
Community Legal Clinic – Simcoe, Haliburton, Kawartha
Lakes. As a Staff Lawyer, Karen practices employment and
human rights law, with a focus on low-income and vulnerable
workers. Her clients include migrant farm workers and live-in
caregivers. She has presented on the legal challenges facing
workers to community groups, regional clinic training
conferences, and provincial and national symposiums. She
also served on of the Ontario Bar Association Taskforce on
Wrongful Dismissal.
Constructive dismissal
Harassment, bullying and discrimination at Work
March 26, 2010
By Karen McClellan
JUSTICE@work Lawyer
JUSTICE@ work
Presented by
JUSTICE@work
Is this presentation for you?
• You are an Ontario worker who has been
fired or feel forced to quit your job
OR
• Your are an advocate, service provider or
ally that a worker or workers may turn to if
fired or facing other problems at work
JUSTICE@ work
Disclaimer
This is not a substitute for legal advice.
If you need legal assistance, call Legal Aid
Ontario at 1-800-668-8258 and ask to be
referred to your community legal clinic.
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Topics Covered
1. What is constructive dismissal
2. What are your legal remedies
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What is Constructive Dismissal?
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What is Constructive Dismissal?
• Unilateral & fundamental breach of contract
• An employment agreement (written or
verbal) cannot be changed by the Employer
or Employee without agreement by both
parties to the change
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Unilateral Change to Employment
Major change in job:
 Responsibilities, tasks, etc
 Reduction in pay
 Change in benefits
 Demotion
 Loss of hours
 Relocation
 Humiliating and unfair
treatment; bullying and
harassment
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Triggering Constructive Dismissal
Not every change = constructive dismissal
To be considered constructive dismissal, the
change must be:
NEW
Was not contemplated at the time of
entering into the contract of employment
(written or verbal);
MAJOR
Results in a major breach of contract and
repudiates the contract;
NOT ACCEPTED
You did not condone or accept the
change.
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Triggering Constructive Dismissal
Not every change = constructive dismissal
To be considered constructive dismissal, the
change must be:
NEW
Was not contemplated at the time of
entering into the contract of employment
(written or verbal);
MAJOR
Results in a major breach of contract and
repudiates the contract;
NOT ACCEPTED
You did not condone or accept the
change.
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Triggering Constructive Dismissal
Not every change = constructive dismissal
To be considered constructive dismissal, the
change must be:
NEW
Was not contemplated at the time of
entering into the contract of employment
(written or verbal);
MAJOR
Results in a major breach of contract and
repudiates the contract;
NOT ACCEPTED
You did not condone or accept the
change.
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Triggering Constructive Dismissal
Not every change = constructive dismissal
To be considered constructive dismissal, the
change must be:
NEW
Was not contemplated at the time of
entering into the contract of employment
(written or verbal);
MAJOR
Results in a major breach of contract and
repudiates the contract;
NOT ACCEPTED
You did not condone or accept the
change.
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Change must be NEW
Was this considered when the job began?
1. In contract?
2. Discussed at time of hiring?
3. Common in the industry?
4. Company practice or policy?
5. Duties/hours set or flexible?
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Change must be NEW
Was this considered when the job began?
1. In contract?
2. Discussed at time of hiring?
3. Common in the industry?
4. Company practice or policy?
5. Duties/hours set or flexible?
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Change must be NEW
Was this considered when the job began?
1. In contract?
2. Discussed at time of hiring?
3. Common in the industry?
4. Company practice or policy?
5. Duties/hours set or flexible?
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OR
OR
Change must be NEW
Was this considered when the job began?
1. In contract?
2. Discussed at time of hiring?
3. Common in the industry?
4. Company practice or policy?
5. Duties/hours set or flexible?
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OR
OR
Change must be NEW
Was this considered when the job began?
1. In contract?
2. Discussed at time of hiring?
3. Common in the industry?
OR
OR
4. Company practice or policy?
5. Duties/hours set or flexible?
OR
Change must be NEW
Was this considered when the job began?
1. In contract?
2. Discussed at time of hiring?
3. Common in the industry?
OR
OR
4. Company practice or policy?
5. Duties/hours set or flexible?
OR
Change must
must be
be MAJOR
MAJOR
Change
TEST: A reasonable person would think a
key term of employment has been changed
Common changes that are major:
–
–
–
–
–
–
Reduction in Salary/Pay
Demotion
Removal of Responsibilities and Core Functions
Lay-off
Change of Job Duties
Change in Benefits (Bonuses, Mat Leave Policy
etc)
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Change must
must be
be MAJOR
MAJOR
Change
Some changes will NOT result in
constructive dismissal
Examples:
– Removal of secondary duties on a temporary
basis
– Minor change in duties due to transfer to new
location but same position
– A very minor change in pay
– Company restructuring
– Reassignments & Relocation
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ChangeNOT
NOTACCEPTED
ACCEPTED
Change
• Acceptance can be explicit or implicit
– Verbal or Written
– Actions
• You can’t wait too long to decide whether
you will accept the change
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Factors considered by the Court
 Objective approach based on all the circumstances
1.
Was there a significant change to the employment
agreement imposed by the Employer?
2.
Whether employee accepted the change
3.
Whether employer acted in good faith and fairly
4.
In some cases:
Intent of Employer: Accidental or Intentional
Whether legitimate business reasons for the change
Factors considered by the Court
 Objective approach based on all the circumstances
1.
Was there a significant change to the employment
agreement imposed by the Employer?
2.
Whether employee accepted the change
3.
Whether employer acted in good faith and fairly
4.
In some cases:
Intent of Employer: Accidental or Intentional
Whether legitimate business reasons for the change
Factors considered by the Court
 Objective approach based on all the circumstances
1.
Was there a significant change to the employment
agreement imposed by the Employer?
2.
Whether employee accepted the change
3.
Whether employer acted in good faith and fairly
4.
In some cases:
Intent of Employer: Accidental or Intentional
Whether legitimate business reasons for the change
Factors considered by the Court
 Objective approach based on all the circumstances
1.
Was there a significant change to the employment
agreement imposed by the Employer?
2.
Whether employee accepted the change
3.
Whether employer acted in good faith and fairly
4.
In some cases:
Intent of Employer: Accidental or Intentional
Whether legitimate business reasons for the change
Factors considered by the Court
 Objective approach based on all the circumstances
1.
Was there a significant change to the employment
agreement imposed by the Employer?
2.
Whether employee accepted the change
3.
Whether employer acted in good faith and fairly
4.
In some cases:
Intent of Employer: Accidental or Intentional
Whether legitimate business reasons for the change
Exceptions
1. Worker misconduct IF change is discipline
2. Contract permits change
3. Alternate job is offered
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Exceptions
1. Worker misconduct IF change is discipline
2. Contract permits change
3. Alternate job is offered
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Exceptions
1. Worker misconduct IF change is discipline
2. Contract permits change
3. Alternate job is offered
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Minor Justified or Accepted Changes
Situations that are NOT constructive dismissal
- Personality conflict at work (minor)
- Disputed performance evaluation
- Disciplinary actions of employer if warranted
and reasonable in circumstances
- Slight change in hours, duties etc or a
change that you accepted in writing or by
continuing to work with changes
- Change in work conditions that was
foreseeable and could be expected at the
time of hiring
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Humiliating treatment
Includes:
• Unprofessional and derogatory comments
– Includes Human Rights Code grounds (i.e.
gender, race, disability, religion, etc) AND
other grounds not in the Human Rights Code
•
•
•
•
Sexual harassment
Discrimination
Threats
Physical violence
Humiliating treatment
Includes bullying and harassment by:
• Boss or supervisor
• Co-workers
• Third parties (ex. customers of employer)
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Humiliating treatment
Who is responsible?
• The employer is obliged to ensure a workplace
that is conducive to the well-being of its
employees and not hostile.
• Workers should take steps to inform
management or supervisors of the harassment
or bullying so that the Employer has an
opportunity to take corrective measures
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Cannot persevere
Humiliating Treatment
1. That undermines employee’s authority/damaging to
morale
2. That is abusive, unfair or harassing and is NOT
condoned
•
TEST: Whether the conduct of the employer is
such that a reasonable person should not be
expected to persevere.
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Accept, Quit, Work under Protest
• A worker must decide within a reasonable time
(usually w/in 10 days) to either
1) Accept the change; OR
2) Consider the contract at an end AND either
a) Quit OR
b) Work under protest (mitigate)
Get legal advice before making your decision
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Accept, Quit, Work under Protest
Accept the Change:
• If you accept the change, in writing or by
your conduct (i.e. continuing to work with
changes) then you have condoned the
change and there is no constructive
dismissal
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Accept, Quit, Work under Protest
Dispute the Change & Quit
• An employee will generally not be
considered to have failed to mitigate loss
of earnings by quitting, in the following
circumstances:
–Poisoned work environment due to
harassment, humiliating and unfair
treatment, or human rights
discrimination
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Accept, Quit, Work under Protest
Dispute the Change AND
Work under protest – to mitigate damages
•
•
•
•
Get legal advice first
Worker may be expected to work in changed
job in order to mitigate loss of earnings
Request information about changes
If you dispute the change but are willing to
work under protest in order to mitigate your
losses, indicate this clearly and in writing
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When does the Constructive
Dismissal actually take place?
2 Year Limitation Period
2 years to commence an action in
court for constructive dismissal
The clock starts running
• When the Employee resigns; or
• When the Employee communicates a refusal to
accept the change but works under protest & to
mitigate damages
Burden of Proof
• In a constructive dismissal action, the
worker must prove a fundamental breach
in the employment agreement occurred
• In cases involving humiliating treatment,
the employee must prove that a
reasonable person would not be expected
to persevere in the circumstances
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Employer obligations under law
• Harassment & discrimination free workplace
under the Ontario Human Rights Code
• Policies and practices in place to ensure a
workplace free from violence or threat (OHSA)
• Policies and practices in place to ensure a
workplace free from harassment and bullying
(OHSA)
• Termination Pay and/or Severance Pay under
ESA if constructive dismissal
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Worker obligations under law
• Treat workers & co-workers with dignity
and respect
• Respect human rights of employer &
coworkers
• Comply with company policies on human
rights, harassment and civility in the
workplace
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What to do if you are being
harassed/bullied?
• Seek legal advice
• Check employer/company policy manual
and follow the steps for making a
complaint
• If no policy, make a written complaint to
your employer – usually direct to Human
Resources Dept.
– (do not write in the heat of the moment) – sign
& date, and keep a copy
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What to do if you are being
harassed/bullied?
Legal Options:
• Human Rights Application
• OHSA – NEW!
• ESA: Resign and bring an ESA claim for
termination and/or severance pay
• Court: Resign and bring an action in court
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Human Rights Application
Human Rights Code (Ontario)
– Time Limit: within 1 year of incident/s
– You do not have to quit in order to bring a
human rights application
Canadian Human Rights Act (fed. reg. jobs)
– Time Limit: within 1 year of incident/s
– You do not have to quit in order to bring a
human rights application
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Occupational Health & Safety Act
(OHSA) – Bill 168
• Applies to most Ontario workers - effect June 15, 2010
• Requirements of Employer
– Establish policies, practices and provide information on: workplace
harassment & violence
– Ensure complaint and investigation mechanisms are in place
– Ensure worker is working in a safe place pending the completion of an
investigation
– Ensure measures for immediate assistance in cases of violence
– Recognize and protect workers from domestic violence in workplace
– Worker can refuse work if worker believes s/he is in danger of
workplace violence
• Enforced by Ministry of Labour Inspectors
– Employees will need to participate in the complaints and investigation
process established by employer
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Employment Standards Act Claim
• An employee who is constructively
dismissed can bring a claim for termination
and/or severance pay under the ESA
• Time Limit: file claim within 6 months of
dismissal or when pay became owing
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Questions and discussion
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www.cleonet.ca
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