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Sandra Banister, QC over 30 years experience as a labour & employment law lawyer
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Lorenzo Oss-Cech, BSc LLB, experienced civil litigation and employment law lawyer

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Constructive Dismissal:
Getting fired without getting fired

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In business jargon, it's called going to Siberia.  You still work for the same company, but instead of being vice president of finance you're now the "special projects manager." Your corner office has been replaced by a cubicle next to the mail room. "If they'd fired me," you fume, "at least I could have sued."  Well, maybe you still can.

If your employer fundamentally breaches or changes any major term of the employment relationship, such as duties or status, you could claim you've been constructively dismissed.  In other words, you were, in effect, fired . You could then sue for wrongful dismissal.  A court will consider all of the circumstances of the employment relationship to decide whether a fundamental breach or change has occurred.

If, for example, your employer gave you reasonable notice that a change would occur, there is no constructive dismissal. 

If a breach has occurred, you must communicate that you do not accept the change and try to negotiate a solution.  If the problem cannot be resolved, you can resign and start an action for wrongful dismissal.  The court will examine the facts surrounding the resignation when it awards damages.

If you instead continue to work under the new conditions, after a reasonable amount of time, the new conditions are considered accepted and become part of the employment agreement.

These are some changes which may qualify as constructive dismissal:

  • hiring a replacement
  • demotion
  • reduced pay
  • withholding pay
  • change in job responsibilities
  • abusive treatment
  • fewer hours
  • short-term lay off
  • forced leave of absence
  • not allowing employee to work
  • forced transfer

More questions? .

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