What is Constructive Dismissal?

Constructive dismissal occurs when an employee resigns due to a significant change in their employment terms or conditions, which the employer has imposed unilaterally. This could involve changes like:

• A demotion or significant reduction in responsibilities

• A substantial pay cut

• Changes in work location that are not agreed upon

• A toxic work environment that makes it unbearable to continue working

Employee Options

1. Document Everything: Employees should keep a detailed record of changes, communications, and incidents that illustrate the work environment or changes imposed by the employer.

2. Raise Concerns with the Employer: Before resigning, it's advisable to address the issues directly with the employer to seek resolution.

3. Seek Legal Advice: Consulting with a lawyer or paralegal can provide clarity on rights and potential next steps.

4. Decide on Action: The employee can choose to either file a complaint with the Ministry of Labour or pursue a lawsuit in court.

Filing a Case

1. Ministry of Labour

• Procedure:

  • Filing a Complaint: An employee can file a complaint regarding violations of the Employment Standards Act (ESA).

  • Investigation: The Ministry will investigate the complaint, which may involve interviews and evidence gathering.

• Expected Outcomes:

  • The Ministry can order the employer to comply with employment standards.

  • Remedies may include unpaid wages or reinstatement, but it does not award damages for wrongful dismissal.

2. Ontario Court

• Procedure:

  • Filing a Lawsuit: An employee files a statement of claim in court alleging constructive dismissal.

  • Discovery and Trial: The process involves discovery (gathering evidence) and may lead to a trial if a settlement isn’t reached.

• Expected Outcomes:

  • The court can award damages, including lost wages, benefits, and sometimes additional damages for mental distress.

  • The process can be lengthy and may require legal representation.

Comparison of Filing Routes

Aspect	Ministry of Labour	Ontario Court
Formality	Less formal, administrative process	Formal legal proceedings
Timeframe	Generally faster	Can take months or years
Remedies	Compliance orders; no damages	Monetary damages, reinstatement possible
Legal Representation	Not required, but can be helpful	Typically requires a lawyer or paralegal

Role of Paralegals

Paralegals in Ontario can assist employees in various ways, including:

• Legal Advice: They can provide guidance on rights under the Employment Standards Act and the common law.

• Filing Assistance: Paralegals can help draft and file complaints or legal documents.

• Representation: They can represent clients at hearings before the Ministry of Labour or in small claims court for certain matters.

Relevant Laws

1. Employment Standards Act (ESA): Governs minimum employment standards in Ontario, including wages, hours, and working conditions.

2. Common Law: Addresses wrongful dismissal claims, including constructive dismissal, allowing employees to seek damages for breaches of employment contracts.

3. Human Rights Code: May apply if the constructive dismissal is related to discrimination or harassment.

Summary

Constructive dismissal is a significant issue in Ontario employment law, providing employees with options to seek redress. The choice between the Ministry of Labour and the Ontario Court depends on the desired outcomes and the nature of the complaint. Legal professionals, including paralegals, play a crucial role in navigating these processes and ensuring that employees’ rights are protected.