Category: Employment Law

When you are hired for any job, you enter into an employment agreement with your employer. It might be a comprehensive written agreement or merely an oral understanding covering such things as your intended duties, hours of work and compensation.

In a constructive dismissal, your employer has not directly fired you. Rather, it has unilaterally made a substantial change to the terms of your employment without your implied or express consent. Constructive dismissal can also occur when the workplace environment becomes hostile or toxic.

With a termination, whether for cause or without cause, the employer signals its intention to let a worker go. With a constructive dismissal, the employer is attempting to make conditions so intolerable that the employee eventually resigns out of frustration.

According to the Government of Canada, constructive dismissal is sometimes referred to as “disguised dismissal” or “quitting with cause.” That is because it often occurs in situations where the employee is offered the choice of resigning or agreeing to a change in their employment agreement.

In today’s work environment, it is not unusual for job descriptions to change. With COVID, for example, many people began working remotely. Some changes are temporary, but when your role and responsibilities change substantially and permanently, the conditions of your original employment contract may no longer apply and a new agreement will be needed.

You can agree to a new employment contract but the employer must provide “fresh consideration” in return. The promise of continued employment is not sufficient. Your employer must offer you something of value – such as a raise or more vacation time – in exchange for you entering into the updated employment agreement.

Some people have confused wrongful termination with constructive dismissal. While in both cases the employer is attempting to avoid paying proper severance, the difference between the two is the way that the employment ends. In a wrongful dismissal, it is the employer who directly terminates the employment. In a constructive dismissal, the employee resigns as a result of the employer’s actions, although the employer effectively forced the resignation.

Without your consent

To be considered a constructive dismissal, the employer’s action must be done without your consent. If not, any variation is seen as an agreed change to the contract of employment.

The employer’s failure to meet its contractual obligations distinguishes a constructive dismissal from a regular resignation. But it is not merely how you view your employer’s actions that count. The seriousness of the employer’s failure as well as the amount of deliberation apparent in its actions are also important factors in determining whether there has been a constructive dismissal.

It is up to you to indicate to your employer that you do not accept the new conditions of employment. This can be done by explicitly protesting the new conditions, making it clear that you reserve the right to take legal action. It can also mean resigning within a reasonable period after the change. By not resigning or making your concerns known, you are essentially accepting the new conditions of employment.

Under the law, if you resign as a result of a constructive dismissal you have been effectively terminated without cause and typically would be entitled to the same severance package as someone who is wrongfully dismissed.

Know the signs of constructive dismissal

Just because your job has changed it doesn’t necessarily mean you have been constructively dismissed. For example, your boss can assign you to work at the company’s office across town. However, if you have been re-assigned to a different city, that may be considered constructive dismissal unless you knew that potential relocation was part of the job when you accepted the position.

Signs of constructive dismissal can include:

• Reduced compensation This is a significant decrease in salary or loss benefits, typically more than 10 per cent.
• Withheld remuneration This occurs when your employer refuses to pay wages owed to you.
• Demotion This can include sudden change in job title or loss of responsibilities or being required to report to a previous subordinate.
• Increased workload You may be faced with a change in responsibilities that make it difficult to fulfill family caregiving obligations.
• Toxic work environment Examples of this are being unjustifiably disciplined, abused, harassed or discriminated against.
• Sudden shift change These can be changes in your work schedule that disrupt your work-life balance.
• Refusal to accommodate In this scenario, your employer fails to provide any workplace accommodations needed for you to fulfill your duties.
• Temporary layoff This occurs if you are temporarily laid off in violation of your employment agreement.

What do I do if I suspect constructive dismissal?

If you believe you have been constructively dismissed you cannot afford to sit back and wait. If you fail to act within a reasonable amount of time, your employer can claim that since you continued to work, you tacitly accepted the change.

If you suspect you are being constructively dismissed, keep a record of any emails, texts or letters dealing with the change in your employment agreement. If you meet with your employer about your job, take clear notes about the issues discussed. If you find yourself in a toxic work environment, document any intolerable behaviour and the dates they occurred.

It is important to carefully consider your next move. Remember, constructive dismissal carries the same consequences for an employer as a finding of wrongful dismissal. If an employer is guilty of constructive dismissal you are entitled to receive termination pay and possibly severance pay commensurate with your length of service, position and other factors. Termination and severance packages can include payments for lost wages, benefits and bonuses.

However, constructive dismissal is a complicated area of the law and proving a case can be challenging since it requires proof that your employer breached your employment agreement and did things that were serious enough to force you to quit your job.

Before deciding to resign or confront your employer, you should consult an employment lawyer who can identify if you have a legitimate claim, discuss your options and prepare a response to your employer. This can include sending your employer a demand letter, filing a statement of claim or pursuing other legal options.

We are here to help

If believe your employer has changed your employment relationship without your consent don’t quit before you call us. The Walter Law Group has been trusted as experts in employment law for three decades and we can hold employers accountable and advocate for compensation on your behalf.

We advocate for clients in Mississauga, Oakville, Brampton, Toronto, the GTA and across Ontario and we will work diligently to ensure you get the fair treatment you deserve.

Contact us today so we can help you move on to a brighter future.

In recent news, NHL coach Mike Babcock’s actions have sparked discussions about the delicate balance of power within workplaces. While Babcock may have believed he was fostering camaraderie with his players, experts argue that he may have unintentionally crossed ethical boundaries.

Upon joining the Columbus Blue Jackets, Babcock faced scrutiny for allegedly requesting that players share family photos from their phones, raising concerns about privacy and the misuse of his authority as head coach.

Experts emphasize the significance of recognizing the influence of positional power in such scenarios. Muneeza Sheikh, an employment lawyer at Levitt Sheikh LLP, explains that employees often feel compelled to comply with requests from superiors, even if they find them uncomfortable due to concerns about job security or workplace treatment.

Ex-NHL player Paul Bissonnette revealed on the “Spittin’ Chiclets” podcast that he was informed by an anonymous player that Babcock had asked team members to share personal photos, which he would then display on a television. In response to these allegations, the NHL Players’ Association dispatched its executive directors to investigate the matter.

Sheikh clarifies that it is not inherently wrong for an employer to express interest in employees’ personal lives, such as family photos. However, she underscores that positional power significantly influences workplace conversations, whether they are personal or professional.

According to Michael Walter of Walter Law Group, even when employers have good intentions of fostering a positive work environment, they must exercise caution when delving into personal matters. He highlights the importance of context and the potential for employers to inadvertently make their subordinates uncomfortable.

Walter emphasizes that there exists a delicate balance in the interactions between managers and employees. Employers must be mindful not to inquire too deeply into personal lives or relationships. Employees should not feel pressured to share personal information that they are uncomfortable disclosing.

Regarding employees’ devices, Sheikh notes that employers have a right to monitor devices used for both personal and professional purposes. However, she distinguishes between device monitoring and the invasion of personal photos. Privacy rights in Canada are not as extensive as commonly believed.

Stuart Rudner of Rudner Law observes that there is no current legislation preventing employers from making similar requests for personal photos or phone access. He acknowledges that employees may feel compelled to comply due to fear of job loss.

Rudner emphasizes the importance of simplicity in employers’ day-to-day interactions with employees. He advises against asking specific questions that could disclose sensitive information related to age, family status, religion, disability, or sexual orientation, as this could trigger human rights concerns.

Remote work has also introduced new dynamics to professional interactions. With virtual meetings, individuals may inadvertently reveal aspects of their personal lives, such as pets or family members in the background. However, Rudner emphasizes that discrimination based on protected characteristics remains unacceptable, even in remote work environments.

In conclusion, the evolving workplace landscape requires employers to navigate power dynamics with care and sensitivity, respecting employees’ boundaries while fostering a positive work environment. Balancing curiosity with respect for privacy is essential in creating a harmonious workplace.

Read Full Article here.

If you have ever been in an accident, you understand how complicated the automobile insurance compensation system is. It can be challenging to determine and access the applicable accident benefits. Accident benefits are a crucial part of the automobile compensation system. However, understanding what you are entitled to and how to access the benefits can be overwhelming. After an accident, you may be wondering what the first step of submitting a claim in Canada is. A lawyer can answer your questions and guide you through the claim process.

How Long Do You Have to Make an Insurance Claim?

After an accident, you should report to your insurance agent, broker, or company within seven days. If you do not report the accident within a reasonable time, the insurance company can fail to honour your claim. You should have the following information when calling insurance after an accident:

• Make, model, and licence plate number of your vehicle
• Your insurance policy number
• Date, time, and location of the accident
• The location of vehicle damage
• The list of your injuries

Police / accident Report

• Whether passengers were involved
• The names and licence numbers of other drivers involved in the accident
• Your description of the accident

How Long Does an Insurance Company Have to Investigate a Claim in Ontario?

Insurance companies must act fast to investigate cases and make determinations. The insurance company should complete the investigation within 30 days. The insurer must provide a written explanation if it can’t complete the investigation within this period. After the initial letter, the insurer will give you a case update every 45 days.

How Much Money Do You Get from a Car Accident Settlement in Ontario?

Your claim for Accident Benefits cannot be settled prior to the one year Anniversary of the accident date.  The amount you can get after an accident will vary depending on the circumstances of the accident and a variety of other complex factors. That’s why you need an experienced lawyer to work on your behalf and ensure you receive as much as possible in each case.

When No Insurance Coverage Is Available

It is illegal to operate a vehicle without insurance coverage. What happens if you are injured in an accident, and no other insurance is available? In this case, the Motor Vehicle Accident Claims Fund is the go-to option for compensation. You may be eligible for compensation for the injuries you suffer and property damage. You can claim:

• Accident benefits if you suffer an injury in the accident
• Death and funeral expenses compensation on behalf of a victim who dies in the accident
• Personal injury compensation or Income Loss Claim

Applying For The Motor Vehicle Accident Claims Fund

You can seek compensation from the Motor Vehicle Accident Claims Fund only if you have no access to any other insurance and you meet the following requirements:

• You reside in Ontario
• You were involved in a vehicle accident in Ontario, and the involved parties had no auto insurance
• You suffered injuries.

Perhaps you do not have insurance, and you suffered injuries in a car accident. You might be eligible for compensation if:

• You were not in the vehicle at the time of the accident. For example, you could have been cycling or walking, and a vehicle driver without insurance hit you.
• You were a passenger in a car where the driver was uninsured.
• You were involved in a hit-and-run accident, whereby you cannot identify the other vehicle.

How To Apply for Accident Benefits

When applying for accident benefits, you will need the following documents:

• A duly filled and signed Statutory Accident Benefits Application, abbreviated as OCF-1
• A copy of the police report
• A completed Disability Certificate (OCF-3)

A Completed Employer’s Confirmation (OCF-2)

Recovering Death and Funeral Benefits

If your loved one dies in a vehicle accident, you can seek compensation on their behalf. When seeking death and funeral benefits, you will need the following:

• A duly filled and signed OCF-1
• OCF-4 (An application for Death and Funeral Benefits)
• Copy of the police receipt
• Invoice and receipt from the funeral home
• Death certificate or the coroner’s report

When Your Vehicle is Damaged in an Accident

You can apply for compensation for property damaged because of the accident. You will need the following when making a claim for vehicle damage against your own Insurance Company:

• A copy of the police report
• Repair invoice or damage estimate
• Pictures of the vehicle damage.

Insurance companies assign different adjusters to vehicle damage claims vs. personal injury claims and it is important to understand how to handle each one to make sure your interests are protected.

Contact An Experienced Lawyer Today

If you have been involved in a car accident in Mississauga, you should not face insurance adjusters on your own. Instead, you should contact an experienced lawyer to guide you through the insurance claim requirements and process. At Walter Law Group, we have helped many accident victims to seek compensation for their damages. Contact us today to speak to one of our lawyers.