Constructive dismissal occurs when an employer terminates an employee’s employment indirectly, without explicitly notifying the employee of the dismissal. This practice is often used by employers to encourage employees to resign, thus avoiding having to pay compensation or respect the notice of termination of employment required by law.
What is constructive dismissal?
Constructive dismissal involves a unilateral and substantial change to the essential conditions of employment, thereby pressuring the employee to resign. Unlike explicit dismissal, it relies on indirect actions, such as contractual changes or behaviours that make the workplace unlivable.
Employer actions that may constitute constructive dismissal
Here are a few examples:
- A significant reduction in salary or demotion.
- The removal of tools needed to do the job.
- The presentation of an ultimatum: accept radical changes or lose your job.
Recourse and deadlines for employees
In Quebec, constructive dismissal can be likened to dismissal without good and sufficient cause, protected by section 124 of the Act respecting labour standards. This recourse gives employees with at least two years of uninterrupted service the opportunity to contest their dismissal. The deadline for filing a complaint is 45 days after the event.
To take action, the employee must:
- Oppose the changes promptly.
- Consult a lawyer before resigning.
- Provide evidence that the resignation is the result of the employer’s actions.
Conclusion
Constructive dismissal, while insidious, is a risky strategy for employers and an opportunity for employees to exercise their rights. Employees must be vigilant in the face of any unilateral change and consult a lawyer as soon as possible to maximize their chances of success in this type of recourse.
Sara Lajoie’s practice focuses primarily on labor law, occupational health and safety, and civil and administrative litigation. Ms. Lajoie holds a law degree from the Université de Sherbrooke and was admitted to the Bar in 2024. During her studies, Ms. Lajoie shone among her peers by winning the Lieutenant-Governor’s Youth Medal. She also participated in the Simulation des Nations Unies, an enriching experience that demonstrated her ability to navigate the debates of global diplomacy with ease, under the aegis of the Université de Sherbrooke. Prior to joining Dunton Rainville, Me Lajoie gained experience working in a criminal law firm as well as in a community justice center, allowing her to hone her legal skills. Her clear and persuasive communication, both written and oral, testifies to her ability to present arguments convincingly. She excels in the art of negotiation, while earning the trust of her clients.