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To watch & listen to this presentation as a webinar visit
CLEONetwww.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 dismissalHarassment, bullying and discrimination at Work
JUSTICE
@ work
March 26, 2010By Karen McClellan
JUSTICE@work Lawyer
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.
JUSTICE
@ work
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
JUSTICE
@ work
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
JUSTICE
@ work
Triggering Constructive Dismissal
Not every change = constructive dismissal
To be considered constructive dismissal, thechange must be:
JUSTICE
@ work
Was not contemplated at the time of entering into the contract of employment (written or verbal);
Results in a major breach of contract and repudiates the contract;
You did not condone or accept the change.
NEW
MAJOR
NOT ACCEPTED
Triggering Constructive Dismissal
Not every change = constructive dismissal
To be considered constructive dismissal, thechange must be:
JUSTICE
@ work
Was not contemplated at the time of entering into the contract of employment (written or verbal);
Results in a major breach of contract and repudiates the contract;
You did not condone or accept the change.
NEW
MAJOR
NOT ACCEPTED
Triggering Constructive Dismissal
Not every change = constructive dismissal
To be considered constructive dismissal, thechange must be:
JUSTICE
@ work
Was not contemplated at the time of entering into the contract of employment (written or verbal);
Results in a major breach of contract and repudiates the contract;
You did not condone or accept the change.
NEW
MAJOR
NOT ACCEPTED
Triggering Constructive Dismissal
Not every change = constructive dismissal
To be considered constructive dismissal, thechange must be:
JUSTICE
@ work
Was not contemplated at the time of entering into the contract of employment (written or verbal);
Results in a major breach of contract and repudiates the contract;
You did not condone or accept the change.
NEW
MAJOR
NOT ACCEPTED
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?
JUSTICE
@ work
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?
JUSTICE
@ work
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?
OR OR
JUSTICE
@ work
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?
OR OR
JUSTICE
@ work
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?
OR 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?
OR OR
OR
Change must be NEW
Change must be MAJOR
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)
JUSTICE
@ work
TEST: A reasonable person would think a key term of employment has been changed
Change must be MAJOR
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
Change must be MAJOR
Some changes will NOT result in constructive dismissal
JUSTICE
@ work
Change must be MAJOR
Change NOT ACCEPTED
• Acceptance can be explicit or implicit– Verbal or Written– Actions
• You can’t wait too long to decide whether you will accept the change
JUSTICE
@ work
Change NOT ACCEPTED
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
JUSTICE
@ work
Exceptions
1. Worker misconduct IF change is discipline
2. Contract permits change
3. Alternate job is offered
JUSTICE
@ work
Exceptions
1. Worker misconduct IF change is discipline
2. Contract permits change
3. Alternate job is offered
JUSTICE
@ work
Minor Justified or Accepted Changes
- 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
JUSTICE
@ work
Situations that are NOT constructive dismissal
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)
JUSTICE
@ work
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
JUSTICE
@ work
Cannot persevere
Humiliating Treatment1. 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.
JUSTICE
@ work
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
JUSTICE
@ work
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
JUSTICE
@ work
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
JUSTICE
@ work
Accept, Quit, Work under Protest
Dispute the Change ANDWork 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
JUSTICE
@ work
When does the Constructive Dismissal actually take place?
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
2 Year Limitation Period
2 years to commence an action in court for constructive dismissal
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
JUSTICE
@ work
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
JUSTICE
@ work
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
JUSTICE
@ work
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
JUSTICE
@ work
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
JUSTICE
@ work
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
JUSTICE
@ work
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
JUSTICE
@ work
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
JUSTICE
@ work
This webinar was brought to you by CLEONet
For more information visit the Employment and Work section of CLEONet
at www.cleonet.ca
For more legal information webinars visit:http://www.cleonet.ca/legal_education_webinars