- From time-to-time people come to see me because something just “feels wrong” about the way they are being treated at work. In one case, a client came to see me a couple of months after she had “resigned” from her position. She had even given a written notice to her employer. The reason she saw me was because something was gnawing at her: it felt wrong she said; she felt like she had been forced to quit and was left with no option but to resign or continue working in a humiliating work environment. She wanted to know whether there was anything she could do? There was.
What many employers and employees don’t know is that if an employer makes fundamental changes to your employment contract without your consent, they may in fact be firing you. This is known as constructive dismissal. Examples of “fundamental changes” that might be considered as evidence of constructive dismissal are:
Being unilaterally moved into a new role from than that for which you were hired;
- Unilateral removal of rights, benefits, or privileges – like a private office, or a cut in vacation;
- Having your wages cut;
- Repeated public humiliation by colleagues;
- Being unfairly enrolled in a progressive discipline program;
- Being required to meet unrealistic targets;
- Being forced to work for someone who is known to have a personal conflict with you.
Sometimes one factor alone (like a salary cut) may be enough for a judge to decide that you were constructively dismissed. Sometimes, it will be the cumulative effect of many of the above factors. In any event, you may think that you have resigned, your employer may think you have resigned, but in fact you have been constructively dismissed and are entitled to severance.
Just this month, the Ontario Court of Appeal upheld a decision awarding a former McDonalds employee in Ontario, Esther Brake, over $100,000 in damages for constructive dismissal. In Ms. Brake’s case she was put on a progressive discipline program and asked to meet unrealistic targets. When she didn’t meet them she was told that she had to “take a demotion or go”. McDonald’s offered her the choice to move from Manager to Assistant Manager or leave. Ms. Brake was 62 years old and had worked at McDonald’s for 20 years. She left.
At trial, McDonald’s argued that she had resigned and was not entitled to any severance. Ms. Brake argued that she was actually dismissed. The trial judge found that while Ms. Brake was not a perfect employee, [t]here was far more right about her performance than wrong with it” and that McDonald’s had, in effect, set her up to fail, stating:
“[McDonald’s] unilaterally made a substantial and fundamental change to [her] employment contract and that in doing so constructively dismissed her without cause.”
Ms. Brake won and was awarded 20 months’ severance. Although in my case we never went to trial, my client ultimately ended up reaching a settlement of her claim for tens of thousands of dollars.
As always, the information provided here is general information and not legal advice. However, if you feel like you are being set up to fail or forced to quit by your employer, think again: you may have a claim for constructive dismissal. At the very least, consider seeking out an experienced employment lawyer and obtaining an opinion – it could end up being worth thousands.
David Hughes practices employment law at Forward Law LLP. He helps both employees and employers understand their rights and options.