The Employment Standards Act, 2000 (ESA) defines wrongful dismissal as a termination for illegal reasons, such as violation of a contractual breach, existing labour laws, or anti-discrimination regulations. For example, an employee who is terminated based on their gender, ethnicity, disability, or marital status, constitutes wrongful dismissal. Furthermore, acts of retaliation (reprimanding or terminating an employee after making a complaint about their employer or another colleague) are also deemed wrong and unlawful.
Another form of unlawful employment termination is constructive dismissal. This form of termination often occurs in situations when the employer makes modifications to a fundamental term or condition of an employee’s contract without their consent, or they give their employee an ultimatum (accepting the changes or quitting). When it comes to employment law, employers must take appropriate steps to ensure procedural fairness before terminating an employee. If an employer unlawfully dismisses an employee, then they may face legal prosecution if found guilty. As a result, the onus is on the employer and their HR team to investigate all workplace incidents before making a plausible decision on termination.
Consequences of Constructive Dismissal for Employers
An employer who is found to have constructively dismissed an employee must either pay the latter in-lieu of their notice or pay them a severance package.
Changes to the Rules of Constructive Dismissal Caused by the Covid-19 Pandemic
The Ontario government has made an emergency order that changed the rules for constructive dismissal caused by the Covid-19 pandemic. Between March 21, 2020, and January 03, 2021, an employee cannot claim constructive dismissal based on the Employment Standards Act for temporary pay, or hour reductions due to Covid-19 as they are on a deemed emergency leave. These changes only apply to the rules in the ESA. However, an employee can still go to court to claim constructive dismissal for employment changes (unrelated to Covid-19) that occurred before January 3, 2021 (Ministry of Labour, Training and Skills Development, 2020)
Constructive dismissal is a complex subject that requires an in-depth understanding and a thorough investigation of each situation. Do you need some assistance regarding your recent termination, or are you a victim of constructive dismissal? We’re here to help! Contact us directly for more assistance: ✉️ [email protected]
Resource(s): Ministry of Labour, Training and Skills Development, Termination of Employment, September 4, 2020