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About our presenter… Karen McClellan leads the 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 dismissal Harassment, bullying and discrimination at Work work March 26, 2010 By Karen McClellan Lawyer

Presented by

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 work

Disclaimer This is not a substitute for legal advice. If you need legal assistance, call Legal Aid Ontario at and ask to be referred to your community legal clinic. work

Topics Covered 1.What is constructive dismissal 2.What are your legal remedies work

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 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 work

Triggering Constructive Dismissal Not every change = constructive dismissal To be considered constructive dismissal, the change must be: 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, the change must be: 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, the change must be: 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, the change must be: 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? 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? 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 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 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 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 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) 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 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 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 work

Exceptions 1.Worker misconduct IF change is discipline 2.Contract permits change 3.Alternate job is offered work

Exceptions 1.Worker misconduct IF change is discipline 2.Contract permits change 3.Alternate job is offered 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 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) 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 work

Cannot persevere Humiliating Treatment 1.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. 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 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 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 work

Accept, Quit, Work under Protest Dispute the Change AND Work 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 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 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 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 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 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 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 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 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 work

Questions and discussion work

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