Girones Bourdon Kelly Lawyers in Timmins has been receiving a surge in calls recently from employees distressed about their toxic work environment. Kimberly Kenney, an employment lawyer at GBK Lawyers says, “Individuals are contacting us because their job roles have been drastically changed, their pay reduced, their work environment is hostile, or they’ve been blindsided by being let go with very little severance that doesn’t meet the legal entitlements under the Employment Standards Act or Common Law.”
Employees often think that being let go is like Donald Trump on The Apprentice saying, “You’re Fired”. But in Ontario, there is much more to being Wrongfully or Constructively dismissed than most people realize.
What is wrongful dismissal?
Wrongful dismissal in Ontario is like being kicked off the bus before your stop, without a valid reason or a fair warning. It occurs when an employer terminates an employee without just cause or fails to provide adequate notice or severance pay.
Kenney says, “Employees who have been wrongfully dismissed have legal grounds to seek compensation. This legal safeguard protects workers from arbitrary or unfair job loss, ensuring that they’re not left out in the cold.”
What is constructive dismissal?
Constructive dismissal is like being on a bus where the driver suddenly changes the route, drives erratically, or makes the conditions unbearable, forcing you to get off before your stop. Kenney says, “In the workplace, constructive dismissal occurs when an employer makes significant, unilateral changes to your job, such as drastically cutting your hours, reducing your pay, or creating a hostile work environment.”
Changes that could constitute a constructive dismissal include,
- Compensation or benefits
- Demotion resulting in loss of personal status or prestige
- Change in title, duties, or reporting relationships
- Change in geographical location.
A “poisoned” work environment is one of the more significant issues which may include,
- Persistent or unwarranted criticism from a superior. Kenny points out, “Bosses can offer constructive criticism but if the criticism is persistent in a non-constructive way, or your boss is demeaning you, that may be viewed as a poisoned work environment.
- Abusive treatment that may render an employee incapable for fulfilling their duties. Kenney says, “If a supervisor is constantly screaming in your ear accusing you of doing something wrong and that is causing anxiety or stress.”
- Other issues include harassment, racism, dehumanizing, derogatory, or sexist comments or personal acrimony between an employee and their superiors.
With constructive dismissal, the employee is not let go, however, the terms of their employment are so altered by the employer, it’s as if the employment contract has been shattered. Kenney says, “The employer may have changed the employee’s work duties, role, or work location and the employee does not consent. Keep in mind that these types of changes may be the employer trying to get the employee to resign so they can avoid paying compensation.”
Call a lawyer
Kimberly Kenny says individuals worried about their job security are often in a panic. “We often advise them that if the factors indicate a constructive dismissal and they want to resign, we remind the employee that they will bear the burden of demonstrating that the conditions of their employment were significantly altered, and they had no other choice but to resign.”
Let’s say, a supervisor is making $100,000, but their boss decides to demote them and reduce their salary by $40,000. If the employee shows up and does the job for 2 weeks, they may be viewed as accepting the demotion and pay cut. Kenney says, “You must act immediately. Call a lawyer. Meet with your employer and tell them you are not consenting to this change and ask for a proper reason for this decision. You’re not expected to fulfill the obligations of the new role without proper justification or cause.” If an employee wants to take a leave, they can do so, providing they have evidence to support a constructive dismissal case.
GBK Lawyers will send a letter to the employer advising them that based on evidence presented, they believe that the employee is being constructively dismissed and they would ask to have a discussion in respect to termination and notice pay. Kenny says, “Oftentimes, the employer will respond with the notion that the employee abandoned their employment because they decided to leave, and that response can scare people. But if someone is uncomfortable going to work and they’re being paid less, it does have an impact on their mental, physical, and financial well-being and the employer-employee relationship may be unilaterally terminated justifying a case of constructive dismissal.”
The employee should contact a lawyer. A lawyer will tell them if their circumstances meet the test of a constructive dismissal. Kenney adds, “Time is of the essence. If you think your employment contract and/or relationship has been fundamentally altered, do not condone the change.”
The burden of proof rests with the employee to show that the employer violated the terms of the employment contract. Kenney advises, “Keep your employment contracts. It’s one of the first things a lawyer will ask for. Any proposed changes should be in writing. If harassment is occurring, be sure to document the details when they are fresh in your mind.”
What are your entitlements?
In a wrongful or constructive dismissal there are certain entitlements under the Employment Standards Act and the Common Law. Under the ESA, the entitlements are typically 1 week for each year of service. However, under Common Law an employee could receive damages which include an increase in the notice period, because a terminated employee is not expected to apply for jobs for which they are unqualified and with significantly less pay.
An employment lawyer can provide essential guidance, secure fair compensation, address any unlawful actions taken by the employer, and ensure an employee’s rights are protected.
Find GBK Lawyers online, or contact them via phone (800) 569-1673 or email: [email protected].
This article was sponsored by Girones Bourdon Kelly Lawyers, a 2023 TimminsToday Reader Favourite.