It is lawful, in extreme and difficult situations, for an employee to claim that an employment position has effectively come to an end, even where there has been no actual termination.
In such cases, an employee has been constructively dismissed, and may be entitled to resign while still maintaining all entitlements to severance-related compensation from the employer.
Under Ontario employment law, a constructive dismissal may occur where a unilateral and fundamental change is imposed by the employer on the duties or responsibilities of the employment, including the removal of important responsibilities and functions so that the employee has effectively been demoted to a lesser position. Such constructive dismissal may occur even in the absence of a reduction in salary, compensation or benefits.
Constructive dismissal may also occur where continuation of the employment has reasonably become untenable to the employee due to persistent and serious harassment, workplace bullying or discrimination, a major change in working conditions, location of employment or terms of employment, or a unilateral, significant reduction without reasonable notice in the terms of compensation paid to the employee.
In such circumstances, an employee may have the right to treat the job as terminated, even where the employer has no specific intention to terminate or end the employment.
An employee who has been constructively dismissed has the same entitlements to salary in lieu of notice, statutory severance and termination payment, and such additional compensation which would have been available had he or she been dismissed without cause.
Retaining a wrongful dismissal lawyer and acquiring legal advice is essential prior to alleging constructive dismissal in any specific case.
A claim of constructive dismissal is not without risk and should be made only after thorough consideration of the circumstances with a qualified Toronto employment lawyer.
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