Constructive Dismissal Claims Be Pursued by Shareholders
In general, an employee can claim constructive dismissal where their employer has breached their contract by creating intolerable working conditions. This breach can be in relation to one or more of the fundamental terms of the employment contract, such as the rate of pay or hours of work. It may also be in relation to a less fundamental term of the employment contract, such as the location of the workplace or the nature of duties.
In either case, it is important to act promptly if you believe that your employer has breached your contract, as continuing in the job could result in you being deemed to have affirmed or accepted the breach. It is not uncommon for tribunals to dismiss constructive dismissal claims because the employee left their job too late, or because they failed to raise any issues with management through the formal channels before quitting (often referred to as condonement).
The burden of proof in constructive dismissal cases can be high. This is why it is essential that you have a sufficient body of evidence to support your claim. This can include emails, texts and any notes that you have taken about relevant events or conversations. Breaches relating to the implied duty of trust and confidence can be harder to prove, and may require the support of witness statements or colleagues.
Can Constructive Dismissal Claims Be Pursued by Shareholders?
To make a constructive dismissal claim, you must have been able to show that the employer’s behaviour was so serious that it effectively terminated your employment contract. This is often referred to as a repudiatory breach of contract, or a breach that fundamentally alters the meaning of the contract. Such a breach can occur before the time for performance has arrived (anticipatory breach), during the period of performance (primary breach) or after the performance has commenced.
In order to establish constructive dismissal, the employer’s actions must be sufficiently serious that they essentially terminate the contract and create a new one. While this is a high threshold, the facts of each situation will differ. It is important that you consider consulting a Toronto constructive dismissal lawyer before deciding whether your employer’s conduct has reached this level.
Typically, an employee must resign in response to the breach to make a constructive dismissal claim. This is because the resignation must be “voluntary” in order for the claim to succeed. The resigning employee must be able to prove that they did not resign as a result of any other reason, such as a better offer of work.
This can be difficult, especially if the employee is a high-profile individual who has a reputation to protect. For this reason, it is recommended that employees explore other job opportunities before resigning from their current position. This can prevent their employers from claiming that they were forced to resign in order to get a new job.