If you feel that your employer is forcing you to leave your position of employment, you must first consider your employment contract with your employer along with factors which make you feel that your employer is forcing you to leave your position.
Potential factors which could be used to argue that your employer is forcing you to leave your position of employment include:
- A difference between the amount of hours you are supposed to work as reflected in your contract and the hours you now currently work, without sufficient reason
- An unreasonable demotion or reduction in pay contrary to what is stated in your employment contract, or removal of employee’s responsibilities without sufficient reason
- Forcing an employee to move to another location without asking for the employee’s input or at least giving the employee sufficient notice prior to the move
- The employer fails to adequately respond to the employee’s reasonable concerns at work, such as harassment, or failure to provide a safe and proper place and system of work for the employee
If the above or a similar factor applies to your situation, then you may have a claim for Constructive Dismissal. Constructive Dismissal is where an employer, on their own and without sufficient reason, makes a fundamental or substantial change to an employee’s employment contract which violates the contract’s terms. Constructive Dismissal is where the employer’s actions show that they no longer intend to be bound by the employment contract with the employee.
Determining whether Constructive Dismissal is applicable in your situation is important because it relates to the employer’s responsibility to give its employee reasonable notice that the employer is no longer interested in keeping its employment contract with the employee. Alberta’s Employment Standards Code Section 56 tells us the termination notice that the employer must follow, which depends on how long the employee has been employed. If the employer is unable to give the requisite notice to the employee, Section 57 of the Employment Standards Code requires employers to pay termination pay of an amount at least equal to the wages the employee would have earned for the period of the termination notice. A potential option for you then would be to ask the employer to pay you the corresponding termination pay. Depending on the severity of how the employer treated the employee and other factors such as the employee’s age and employability, the employee can also discuss with a lawyer in regards to increasing the notice and thereby the termination pay, or even seek punitive damages.
You should also consider the potential effects that making a claim for Constructive Dismissal would have in relation to a claim for Employment Insurance (E.I.). Generally speaking employees can only successfully apply for E.I. due to sickness, or being let go by the employer without cause. If an employee quits on their own accord, on face value they would be unable to claim E.I. However, if the employee can successfully argue for constructive dismissal as they had no choice but to quit because of changes that the employer imposed, the employee can also argue that their Record of Employment should reflect that they were dismissed without cause, which would allow them to claim benefits under E.I.
If you think that you may have a Constructive Dismissal argument against your employer, consult with a lawyer to see what steps you could take. It is especially important to discuss with a lawyer as special situations, such as the ongoing pandemic, can also affect your argument for constructive dismissal.
Rafael completed his Juris Doctor from the University of Calgary, where he also graduated with a Bachelor of Arts in Political Science. During law school, Rafael volunteered with Pro Bono Students Canada as a Project Coordinator for the Immigration Project, and with Student Legal Assistance as a student caseworker, providing legal services to diverse clients.