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What to do in the face of a constructive dismissal?

Several laws exist in Quebec to protect workers in the event of dismissal: the Act respecting labour standards, the Labour Code, the Charter of Human Rights and Freedoms, the Act respecting industrial accidents and occupational diseases, etc. However, when it comes to constructive dismissal, it can be more difficult to prove fault. Difficult… but possible.

First of all, what is a constructive dismissal? The Commission des normes, de l’équité, de la santé et de la sécurité au travail (CNESST) defines a constructive dismissal as “a roundabout means by which an employer dismisses an employee by presenting it as a layoff or dismissal. The employee may also be induced to resign by substantial and unjustified changes in working conditions or by various forms of harassment”.

For example, if John has been working for the same company for more than two years and his employer decides, for one reason or another, to radically increase his workload, and this situation causes John to resign; this could indeed be a constructive dismissal.

Court decisions

Although constructive dismissal is illegal, there are currently no clear legal provisions to counter it in legislation. However, a number of landmark court decisions have helped to further define the concept, including the 1997 Supreme Court of Canada decision in Farber v. Royal Trust Co. The decision states that “where an employer unilaterally decides to substantially alter the essential terms of an employee’s contract of employment and the employee does not accept these changes and leaves his or her employment, his or her departure does not constitute a resignation, but rather a dismissal. Given the absence of formal dismissal by the employer, this situation is referred to as a constructive dismissal.

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More recently, another court decision, Drolet v. RE/MAX Québec Inc. even recognized that a significant wage decrease could be the cause of a constructive dismissal. The Superior Court, which was called upon to rule, indicated that a salary demotion in the order of 40% was a valid reason for refusing to return to former duties. But other court decisions have also held that a reduction as low as 15% could also justify the charge of constructive dismissal.

What to do then?

Better safe than sorry. If an employee believes that he or she is the subject of a disguised dismissal attempt by his or her boss, the employee should find out what recourse he or she has, for example, by contacting CNESST. Since every situation is different, consulting a labour lawyer is also a good idea.

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