Generally, the law provides some protection to employees when the employer wants to fire them. For example, the Ontario Employment Standards Act stipulates that most employees who have worked more than three months have the right to receive a minimum amount of notice, or pay in lieu of notice. The Canada Labour Code also contains minimum termination and severance pay rules for federally regulated employees.
Limited Grounds of Just Cause for an Employer to Terminate an Employee
When “termination for just cause” occurs, the employee is not entitled to notice of dismissal or a severance package. The grounds for just cause are limited. In general, an example of just cause can be that if the employee is guilty of serious misconduct, or is wilfully disobedient to the employer’s orders in a matter of substance. This is held by the court to be an “extreme measure” and the threshold is high.
Definition of Constructive Dismissal
If your employer is trying to force you to quit without giving formal notice, their act may constitute constructive dismissal. A constructive dismissal occurs when the employer unilaterally changes the terms of an employee’s employment in a substantial way, or demonstrates an intention to no longer be bound by the terms of the employment contract. If you are constructively dismissed, you will be entitled to the same rights and benefits as if you are fired.
Specific Examples of Constructive Dismissal
It should be noted that the change has to be substantial in order for it to amount to constructive dismissal. If your employer asks you to work at a different place in the same city, or if your employer changes your work schedule, that may not be substantial enough to pass the threshold.
On the other hand, it may likely be a constructive dismissal if your responsibilities at work change radically, especially if you are demoted, or if your employer cuts your wage significantly. Additionally, it may also qualify as constructive dismissal if your employer treats you in an oppressive or discriminatory manner.
It is worth emphasizing that whether a constructive dismissal is constituted is a fact-specific analysis, and this area of law is complicated. Therefore, if you face a situation where a constructive dismissal may have likely arisen, it is advisable that you consult a lawyer.
Special Rules During COVID-19
According to Regulation 228/20 issued by the Ontario government on March 29, 2020, from March 1, 2020 to July 3, 2021 (latest amendment made on December 17, 2020), you cannot claim constructive dismissal under the Employment Standards Act if there is:
- a temporary reduction or elimination of your hours of work by the employer for reasons related to COVID-19; or
- a temporary reduction in your wages by the employer for reasons related to COVID-19.
Under this Regulation, employees who have encountered such change in their wages or hours will be deemed to be on “infectious disease emergency leave”, not constructively dismissed. However, since the Regulation only deals with constrictive dismissal claims under the Employment Standards Act but not the common law, it may not necessarily bar employees from bringing common law constructive dismissal claims to the court.
If your employer is forcing you to leave your job, it is advisable for you to consult a lawyer to get to know your legal rights. Toronto employment lawyer, Stacey ball can help you determine your legal options. Please call us at 416-921-7997 extension 227.