Constructive Dismissal in British Columbia
What is constructive dismissal?
If your employer creates or allows for the creation of hostile or toxic work environment, the terms of your employment are significantly changed than you are permitted at law to claim constructive dismissal. You cannot claim constructive dismissal if you continue working. Instead, the law allows you to resign and claim constructive dismissal.If you claim constructive dismissal you are entitled to the same amount of severance pay as you would have been entitled to if you had been simply terminated. The amount of severance pay depends on many factors, such as how long you worked for your employer, your age, your position, and your employability.
What are examples of constructive dismissal?
Demotion
If you are demoted, you may claim constructive dismissal. Your employer need not officially demote you in order for you to have a claim of constructive dismissal. If your responsibilities are significantly reduced, you have been demoted even if your employer does not officially demote you, and you may claim constructive dismissal.
Reduction in salary
The law does permit an employer to make a modest reduction in your salary without it being considered constructive dismissal. However, if your salary is reduced by more than approximately 10%, you will have a claim for constructive dismissal.
Harassment
You are entitled to a workplace environment free of harassment. If your employer is harassing you or turning a blind eye to other employees harassing you, then you have a claim for constructive dismissal.
Employment Standards Act BC and Contract Law
The Employment Standards Act BC codifies the amount of severance pay you are entitled to if you have been terminated without cause. This also applies if you have been constructively dismissed. However, the Employment Standards Act BC does not require as much severance pay as the Common Law requires. You are therefore better off suing based on Common Law than you are suing based on the Employment Standards Act BC. The Common Law entitles you to roughly 1 month severance pay for every year of employment.
How do you prove constructive dismissal in British Columbia?
Depending upon how you have been constructively dismissed, it is relatively easy to prove constructive dismissal in Vancouver.
For instance, if your income has been significantly decreased, your pay stubs or bank records will more than suffice. If you have been demoted, your employer will almost certainly have put the details of your demotion in writing – less decision making, authority, responsibilities, etc.. If you are experiencing a toxic work environment, you will need witnesses to confirm your experiences.
What constitutes a toxic work environment?
In the province of British Columbia in Canada, a toxic work environment is considered to be a form of workplace harassment, which is prohibited under the British Columbia Human Rights Code (HRC). According to the HRC, harassment is defined as any unwanted or unwelcome conduct, comment, gesture, or contact that is known or ought reasonably to be known to be offensive, embarrassing, humiliating, demeaning, or intimidating to the person or group of persons to whom it is directed.
This can include things like bullying, verbal abuse, physical abuse, sexual harassment, and discrimination based on a person’s protected characteristics (such as race, gender, sexual orientation, etc.).
It is also worth noting that under the Occupational Health and Safety Regulation, employers have a duty to take every reasonable precaution to protect workers from hazards in the workplace, including hazards related to bullying, harassment, and violence. Employers are required to take steps to prevent hazards and if hazards cannot be eliminated, to minimize their effects.
It’s important to note that the laws around what constitutes a toxic work environment can vary by jurisdiction, and it’s always best to consult with a legal professional for specific advice.
Do I have to resign to sue for constructive dismissal?
You must resign first if you wish to sue for constructive dismissal.
What should I do if I have been constructively dismissed?
If you have been constructively dismissed in the province of British Columbia, Canada, there are several steps you can take to address the situation.
Here are some steps you can take:
- Document the situation: Keep detailed records of the changes that have been made to your job, as well as any conversations or interactions you’ve had with your employer about those changes.
- Try to resolve the issue with your employer: Speak with your supervisor or human resources representative to express your concerns and try to find a solution.
- Consider legal action. Seek advice from a lawyer that is familiar with employment law in general and constructive dismissal law in particular.
- Seek support: Being constructively dismissed can be an emotionally challenging experience, it’s important to seek support from friends, family, or a professional counselor if you need it.
It’s important to keep in mind that the laws regarding constructive dismissal can vary by jurisdiction, and it’s always best to consult with a legal professional for specific advice.
What steps should an employer take to prevent a claim for constructive dismissal in the province of British Columbia?
An employer in the province of British Columbia can take several steps to prevent a claim for constructive dismissal:
- Communicate clearly and openly with employees: If changes to an employee’s job or work conditions are necessary, the employer should clearly communicate the reasons for the changes and involve the employee in the decision-making process as much as possible.
- Document all changes: The employer should document all changes made to an employee’s job, including the reasons for the changes, and keep the records on file.
- Provide appropriate notice: If the changes are significant, the employer should provide the employee with appropriate notice of the changes and allow them time to adjust.
- Follow company policies and procedures: The employer should ensure that they are following the company’s policies and procedures when making changes to an employee’s job, and that they are treating all employees fairly and consistently.
- Encourage a positive work culture: Employers should foster a positive work culture by promoting mutual respect and open communication, and by addressing and resolving any issues of harassment, bullying, or discrimination that may arise in the workplace.
- Follow the occupational health and safety regulations, if the change is related to safety issues, the employer should make sure that they are taking every reasonable precaution to protect workers from hazards in the workplace, including hazards related to bullying, harassment, and violence.
Why hire an employment lawyer?
An employment lawyer can help you navigate the legal process and protect your rights if you have been constructively dismissed by your employer. Here are some reasons why you should consider hiring an employment lawyer:
- Legal expertise: An employment lawyer will have a thorough understanding of the laws and regulations related to constructive dismissal and can advise you on the best course of action.
- Representation in negotiations and court: An employment lawyer can represent you in negotiations with your employer or in court, if necessary.
- Help you understand your rights: An employment lawyer can help you understand your rights as an employee and can help you determine if you have a valid claim for constructive dismissal.
- Provide guidance on evidence: An employment lawyer can help you gather and present the necessary evidence to support your claim, including any documentation, witness statements, and other evidence related to the changes made to your job.
- Help you negotiate a settlement: An employment lawyer can help you negotiate a settlement with your employer that is fair and reasonable, including any compensation or reinstatement.
- Help you navigate the legal system: The process of pursuing a claim for constructive dismissal can be complex and time-consuming, an employment lawyer can help guide you through the process and ensure that you meet all deadlines and requirements.
Contact Tim Louis for a free legal consultation today at 604-732-7678 or timlouis@timlouislaw.com
When you need a lawyer who specializes in personal injury, long-term disability, wrongful dismissal or termination, or wills variation contact Tim Louis.
Give Tim Louis a call today at (604) 732-7678 for a no-fee telephone consultation, during which he will answer all your questions, no matter how complex.
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About Tim Louis & Company Law Firm
ABOUT VANCOUVER, BC BASED LAW FIRM SPECIALIZING IN LONG-TERM DISABILITY, PERSONAL INJURY, EMPLOYMENT LAW AND ESTATE LITIGATION.
At the law firm of Tim Louis and Company, we are committed to helping people through difficult times. Starting with a free consultation, we help people who need it most to get the compensation they deserve. Our practice includes Long-Term Disability, Personal Injury, Employment Law and Estate Litigation. With over four decades of experience, Tim Louis has helped people across British Columbia get legal help when they need it most.
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