A constructive dismissal is when an employee is forced to resign due to the employer creating an intolerable work environment. Since the employee is being forced into resigning, it is seen as a termination by the employer and the employee is entitled to a severance package.
It is important to note that constructive dismissals are not necessarily the result of the employer acting with negative intent towards the employee. Restructuring or reorganization of a workplace can cause such significant changes to an employee’s work situation that they make a constructive dismissal claim.
How to determine if a constructive dismissal has occurred?
An employee looking to make a constructive dismissal claim must be able to clearly prove this. Here is what courts in Alberta will consider when determining if an employer is guilty of constructive dismissal:
- Have one or more of the terms of the employment contract been breached?
- If there was a breach of contract, was it a fundamental breach?
If an employee can prove that the above points have taken place, they likely have a legitimate case for constructive dismissal and the employer will be required to pay a severance package to the employee.
Avoiding constructive dismissals in the workplace?
Constructive dismissals are an undesirable outcome for both employers and employees. Not only can employees file lawsuits against their employer, but the situation can result in quality workers leaving a company.
To prevent constructive dismissals in the workplace, employers must be proactive when looking to implement fundamental changes to an employee’s work situation. Below, are two approaches an employer can take to implement change without causing a constructive dismissal:
- When possible, receive the employee’s consent for any proposed changes;
- Provide ample notice for the changes being made to the employee’s working conditions.
The key with both these approaches is the employee is being given notice to the changes being made and there is clear communication between employer and employee throughout the process.
Still have questions on constructive dismissals?
If you have questions on avoiding constructive dismissals in your business, our expert HR advisers are equipped with the knowledge to help you update employment contracts and establish best practices. For answers to your HR or health and safety questions, give us a call: 1 (833) 247-3652.
