Is it constructive dismissal if my employer changes my pay or another aspect of my employment? In this post, we’ll answer common questions about constructive dismissal and what to do if it happens to you.
What Is Constructive Dismissal?
Constructive dismissal is a form of wrongful dismissal. It typically occurs when an employer doesn’t directly fire the employee, but one of two scenarios happens:
- The employer changes the terms of the written or verbal employment contract without advance notice or without the employee’s consent, or
- The employee is forced to quit because of personal health and safety reasons.
The changes that constitute constructive dismissal must be substantial enough to alter the terms and conditions of the employment. For example:
- A reduction in the employee’s pay
- Redefining the employee’s job description or responsibilities
- Permanently changing work hours from a day shift to a night shift
Alberta law considers minor changes normal and acceptable.
Can My Employer Change My Job Location, Hours, Or Pay?
No. Your employer does not have a legal right to significantly change your employment without reasonable notice or without your consent.
What is a significant change that may constitute constructive dismissal? Changes that may cause substantial problems for an employee or cause an employee to feel forced out of the position may be grounds for constructive dismissal. As mentioned above, a change in compensation, demotion, or drastic changes to your work hours are not acceptable.
If your employer gives you advance notice of changes to your employment or changes in company policy, it is not constructive dismissal.
What Happens If My Employer Changes My Employment?
If your employer changes your employment substantially, you have two options:
- Accept the changes, or
- Consider your employment terminated.
If you continue working after the employer makes the changes, you choose the first option by default. The court considers this consent to the changes. In this case, you may lose some of your rights if you decide to claim constructive dismissal later.
That said, it’s best not to quit your job immediately. A better course of action is to seek legal counsel when you learn of your employer’s changes to ensure you proceed appropriately and protect your legal rights.
If your situation qualifies as a constructive dismissal, you may consider your employment terminated. Your employer is then obligated to provide you with adequate notice of the changes or termination pay.
What If I Suspect Constructive Dismissal?
Constructive dismissal can be complex and is open to a high degree of interpretation by Alberta courts. Never assume your case is a confirmed constructive dismissal before consulting with an employment lawyer.
If you choose to file a constructive dismissal claim in court, the burden of proof rests on you, the employee, to demonstrate that the changes to your employment were substantial enough to constitute constructive dismissal.
In Alberta, the courts look at 3 factors to determine if constructive dismissal has occurred:
- The employee must prove the terms of the employment contract. This is easy with a written contract, but understandably difficult with a verbal contract or an implied term.
- The employee must prove that a breach of the employment contract has occurred.
- The employee must prove that the breach of the employment contract was substantial.
If the court rules in your favor, you may receive damages. This could include the minimum termination pay you’re entitled to according to Alberta’s Employment Standards Code and, depending on the situation, other damages (such as punitive damages).