If you feel that you have been unfairly dismissed at work, you can file a complaint with the Canadian Fair Employment Standards Tribunal. In 1997, the Supreme Court of Canada set forth the test for constructive dismissal, Farber v. Royal Trust Co., which made it difficult for employers to determine when unilateral changes to the terms and conditions of employment constitute a breach of the constructive dismissal complaints. Consequently, these courts have made it easier for employees to file complaints if they believe that their dismissal was unfair.
Dismissal complaints
The CNESST is a Canadian national organization that facilitates the filing of constructive dismissal complaints. The organization provides free assistance to workers in Canada who wish to file such complaints. If the dismissal is due to discrimination or retaliation, the CNESST can help them. The CNESST will notify workers of their right to file Employment Contracts and provide them with a number of resources. The workers have 45 days to file their complaints after CNESST contacts them.
In Canada, an employer can transfer a complaint to the CNESST for any reason. However, employers should be aware of the fact that transferring a complaint to another entity is a risk to their business. The CNESST has the authority to determine whether a complaint should be transferred. If a complainant cannot prove that their dismissal was due to discrimination, he or she may be able to file a complaint with the CDPDJ.
Legal right
If you are in a situation where you feel that you have been unfairly terminated by your employer, you can take the complaint to the Canadian Fair Employment Standards Tribunal. This tribunal hears complaints from employees who have experienced discrimination in their workplace. For instance, a female employee who has been sexually assaulted by a male customer at work has her employment suspended for two years, asked to pay for her own medical insurance while on maternity leave, and given a lower pay rate and classification upon her return. Because of her treatment, she resigns. This would be considered constructive dismissal and she is entitled to compensation under the Code.
When a dismissal is unfairly and without cause, the employee has a legal right to sue the employer for damages equivalent to the notice period that they would have received if they had been terminated with cause. Employers who are considering making substantial changes to their workplace should implement strategies to avoid such claims. For instance, it is important to have written contracts of employment that protect the employer from any ambiguity regarding the rights of the employees.
Examples of constructive dismissal
There are several types of constructive dismissal claims. First, an employee must demonstrate that he or she was not constructively dismissed due to the fact that the employer changed the nature of the employment relationship. This change in job title or duty can constitute a fundamental breach of employment contract. If the employer made the changes to the employment relationship without notice or a written contract, an employee could be able to prove that they were treated unfairly or were discriminated against.
Secondly, a layoff may trigger a constructive dismissal complaint. While the ESA does not prohibit layoffs, it does not preclude the employer from imposing a suspension. In these cases, an employer may be excused from paying wages due to the temporary layoff if it had just cause to do so. In such cases, the employer should pay severance compensation to the employee.
Process for filing a complaint
If you feel that your employer has wronged you through a form of constructive dismissal, the process for filing a complaint is relatively simple. The first step is to contact Acas to obtain an Early Conciliation Certificate. You should also assess if you or your employees have been complying with the time limits and procedures in relation to filing a complaint. Generally, you have three months from the date of effective dismissal or the end of your notice period to file a complaint.
In order to successfully bring a constructive termination claim, you need to establish that your employer created a hostile work environment. This includes sexual harassment and discrimination based on a protected characteristic. In addition, you must show that your employer was negligent or deliberately discriminating against you. In most cases, a company must be aware of a hostile working environment if you are able to prove that it occurred.
Legal advice provided to complainants
In Canada, employees of federally regulated non-unionized organizations are entitled to file complaints against their employers for unfair dismissal. If they are dismissed without “just cause”, the employee can seek reinstatement and legal costs. Under the law, the employee’s dismissal must have been for “cause” and cannot be the result of a layoff or discontinuance of the job. Those who have been unfairly dismissed have the right to request the appointment of an adjudicator to determine whether the dismissal was justified.
If the workplace has a poisonous environment, such as a hostile, unwelcoming, or sexually abusive environment, then an employee may have a claim for constructive dismissal. Such a claim will typically require a prolonged period of harassment or bullying on the part of the employer, although a single incident may also be grounds for a claim. However, the court will consider each case on its merits.
