How to Prove Constructive Dismissal in a Case

In employment law, constructive dismissal takes place when an employee resigns due to unwanted changes to fundamental terms of their employment contract, or due to the employer creating a hostile work environment.

Despite no actual firing taking place, the conduct of the employer would have to be of such a scale and scope that the employee is at liberty to regard himself or herself as having been dismissed. In other words, since the resignation was not truly voluntary, effectively, it is considered a dismissal.

Constructive dismissal is, however, often harder to prove than many employees tend to think. The responsibility of proving constructive dismissal rests solely on the employee, who must first provide the requisite evidence to prove that a fundamental breach of contract was committed by the employer, whilst the employer’s only requirement would be to prove that the resignation was not forced.

What qualifies as constructive dismissal?

Among the circumstances which may constitute a breach of contract and enable an employee to leave and claim constructive dismissal are:

• Unfair and unfounded allegations of poor performance
• Unexpected reductions in wages/salaries, or not being paid when expected, without reasonable explanation or notice
• A sudden demotion without reason
• Unreasonable disciplinary procedures
• Forcing staff to work in breach of health and safety laws
• A complete change in tasks/duties without adequate notice or training

Once the employer breaches a fundamental term, under the law, he or she is in breach of the whole contract. The employee is entitled, therefore, to accept the repudiation, thus bringing the contract to an end and thereafter sue the employer for damages.

In order to change a contractual term, both employer and employee have to agree to the new terms, as new terms imposed without agreement and consideration may be unenforceable and may also destroy the entire contract.

There are two types of constructive dismissal. In the first, it must be determined that the employer has implicitly or explicitly breached a term of the employment agreement. Thereafter, it must be determined whether or not the breach was of a magnitude that substantially altered the employment relationship.

The second type of constructive dismissal occurs if the employer’s conduct has shown that he or she intends to no longer be bound by the employment agreement. In this case, there may be a series of smaller breaches of the employment contract by the employer or no actual breach. However, the court may examine the employer’s cumulative treatment of the employee to determine if it demonstrates an intention to no longer be bound by the contract.

In proving constructive dismissal, not only is time is of the essence, but the conduct of the employee after the unfair act takes place is also critical. Due to the fact that when an employer imposes new fundamental terms to which the employee does not agree, the employee can be considered constructively dismissed, the employee must withdraw quickly as continuing to work under the new terms may indicate the employee’s acceptance or condone of the change.

At that point, the law will prevent the employee from making any claim for constructive dismissal.

Do you need help proving constructive dismissal in Vancouver?

If you believe you were the victim of constructive dismissal and are searching for an employment lawyer in Vancouver, contact us at Tim Louis and Company.

Our Vancouver employment lawyer would be pleased to assist with your case on a contingency basis. Call us today to schedule a consultation.