My duties have changed: demotion or constructive dismissal?

When labour relations between an employer and his employee become strained or even impossible, the solution that a number of employers are considering, is to find a way of getting rid of said employee by forcing a dismissal. However, an employee who has accumulated more than two years of continuous service with that employer, may not be dismissed without just and sufficient cause.

To circumvent such legal protection, some “creative” employers will use their internal management power to transfer, displace or even demote this employee, hoping that he or she will eventually resign. Such changes to one’s tasks are not, by themselves necessarily abusive, however, when it consists of a unilateral and substantial amendment to the employment contract, and therefore, without the employee’s acceptance, it may constitute constructive dismissal, even if it is the employee who ultimately decides to leave his new duties, following the unwelcome changes.

These changes, may consist in a significant reduction in the employee’s working ours, a relocation of his workplace, or full on demotion, which is no way based on the employee’s past performance.

The Court of Appeal examined the notion of constructive dismissals in Deschênes v. Laurentian Bank Securities 2018 QCCA 2137. The Court reiterated criteria for identifying constructive dismissal by stating them as follows:

1) A unilateral decision by an employer;

2) A substantial modification of the essential conditions of the employment contract;

3) The employee’s refusal of the proposed changes;

4) The employee’s departure.

The other variant of constructive dismissal is when an employer lays off one, or some employees, when such actions are in fact dismissals.

In conclusion, to determine whether an employee departing may constitute a constructive dismissal, each case is a case in its own right. Whether you are an employee who thinks you have been treated unfairly, or an employer who is having difficulty with an employee and are uncertain about the options which are available to you, it is best to consult a lawyer who can find the right solution to your needs.

Me Jean-Philippe Ponce, in collaboration with Valentin Tanasescu, articling student

Ponce Lawyer Inc.

This article does not constitute legal advice, to obtain a solution adapted to your needs, please consult a lawyer

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