When an employer decides to dismiss an employee from their position with the company, they have three options: they either have to have just cause to terminate the employee, they have to give the employee reasonable notice of their dismissal or pay them wages in lieu of notice of his or her dismissal.
The minimum amount of notice required as set out in the Employment Standards Code is based on the length of time the employee has been with the employer and ranges from one week for employees who have worked at the company for less than a year to eight weeks for employees who have worked at the company for at least 10 years.
However, these notice periods are just the minimum required. Like everything in the Employment Standards Code, an employer can offer more, and in some cases, may have to give more if a lawsuit happens.
In common law, what is considered a reasonable notice period is often much higher than the minimum standards. The rules can be different when there is a collective agreement as well.
If just cause for termination is alleged, the employer does not have to give notice of the termination or pay wages in lieu of notice. However, just cause can be hard to prove. To prove dismissal for just cause is justified, the employer must show that the employee acted in a way that shows they purposefully disobeyed orders, neglected their duties, was dishonest in the course of their employment or was violent in the workplace. If the employer does not actually have cause for the dismissal, they could be faced with a lawsuit for wrongful dismissal. But what if an employer does not actually fire an employee, but rather changes his or her work environment to the point where the employee feels no choice but to quit? When an employer breaches a fundamental term of the employment contract, causing the employee to quit, this is known as constructive dismissal. If constructive dismissal is proven in court or arbitration, it will be treated the same as if the employee was wrongfully dismissed and the employee would be entitled to the same damages. The test in constructive dismissal cases is whether a reasonable person in the same position as the employee would feel that a unilateral change had been imposed by the employer resulting in a substantial change to the essential terms of employment contract.
Examples of what constitutes a constructive dismissal include: a fundamental change in the employee’s duties which would amount to a demotion, breach of a promise of promotion, a reduction in remuneration (pay), changes in the hours of work, a change in the manner of compensation or introduction of a completely new compensation package.
While changes to the conditions of employment could be considered constructive dismissal, if the employee continues to work under these terms for an extended period of time this could be seen as acceptance of the new conditions if the employee does not make it known they do not accept the changes.
A wrongfully terminated employee can either resign and sue for constructive dismissal or remain in the employment and sue for the reduction in income or the value of benefits as damages.
» Breena Murray is an articling student-at-law with Paterson, Patterson, Wyman and Abel, with offices in Brandon, Neepawa and Virden.
Republished from the Brandon Sun print edition April 7, 2012