First things first: what is it? Constructive dismissal is where an employee has not been fired but has had their job functionally taken away in a “hidden” firing. This can be done with a single act or a series of actions or behaviours that add up to a hidden firing.
Constructive dismissal is all too common, and it is executives that need to be on their guard for it. To that end, we have listed a handy “cheat sheet” of what you should keep in mind if constructive dismissal should happen to you.
Here’s what you should know:
1) Every Case is Different
Don’t let a colleague tell you whether you are experiencing constructive dismissal: consult an employment lawyer. Constructive dismissal can look very different depending on circumstances. Be completely honest with your lawyer so you can get a correct analysis.
Correspondingly, since every case is different, do not compare cases or outcomes with colleagues or friends! It’s critical to look at the specific facts and context of each case. In constructive dismissal context is key.
2) Don’t Accept Changes!
We cannot emphasize this point enough. You cannot accept changes. Many people accept changes in their job or responsibilities because they don’t want to rock the boat; they think they can either hold onto or regain their jobs if they do this. On a superficial level this sounds rational, but, in fact, it destroys your legal standing. You should always strive to be reasonable, of course, but not to the detriment of your legal rights. Do not make this mistake. Once you have accepted changes, it becomes very difficult to reject them. In most circumstances, once you accept the changes then that is the end of your case. Period.
3) Silence Will Not Help You
This sounds ominous, doesn’t it? Well… it is. Under employment law (NOT criminal law), silence is deemed tantamount to acceptance. If you don’t protest quickly enough (and the delay is very short) then you are deemed to have accepted the changes and cannot later go back on your decision. It is a one-way street.
4) Delays are Short
The legal delays (the amount of time you have from an action taken to when you must instigate a counter) are lightning-fast when it comes to contesting a constructive dismissal. If you miss the delay, you lose your claim. Simple as that.
5) Strategy is Your Friend
Saying or doing the wrong thing can kill your chances on a constructive dismissal claim. It’s important to be extremely careful. Your best bet is to consult an employment expert in that specific field to quickly get strategic advice. It is best to be practical and manage your expectations by keeping in mind what a satisfactory outcome would look like for you.
All of these factors may seem confusing to you. How do you protest? How do you file a claim? When do you file a claim? What is the best way to keep things amicable? How do you negotiate a severance package when you haven’t officially been fired? Unfortunately, there are no easy answers to these questions.
We stated earlier that with constructive dismissal context is key. That is the simple truth. Every factor establishes your timeline, the strengths and weaknesses of your case, the strategy you should take. The only way you can really be sure to both preserve your rights and strategize quickly and adroitly is to contact an expert employment lawyer.
Hire an expert in the field of executive employment law, with experience in constructive dismissal and severance package negotiations. Remember that you will be better served if your lawyer has experience in your province’s employment law. Employment laws vary by province, and there are differences between federal law and provincial law. These differences can easily trip up anyone but an expert. Remember to hire an experienced employment lawyer to get your advice quickly while avoiding such pitfalls. You should also keep in mind that negotiating will often serve you better overall than litigation in such scenarios, as long as your employer can be made to see reason (that is where your employment lawyer comes in).
Recent Comments