Difference between revisions of "Employment Law Issues (9:V)"

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If the employer makes a fundamental, unilateral change in the employment contract, it may amount to constructive dismissal. Changes to a “fundamental term of the contract” includes changes such as: significant reduction in salary, a significant change in benefits, a significant change in job content or status, or a job transfer to a different geographic location if such a transfer is not a normal occurrence or contemplated in the employment contract. Generally, a reduction in pay of more than 10% may result in a constructive dismissal.

The imposition of a temporary layoff, where not provided for in the contract, has also been deemed to constitute constructive dismissal (see [[{{PAGENAME}}#7. Redundancy and Layoff | Section IV.E.7: Redundancy and Layoff]] for details). Suspensions from work may result in a constructive dismissal, particularly if the suspension is without pay. The case of ''Cabiakman v Industrial Alliance Life Insurance Co'', [2004] 3 SCR. 195 reinforced an employer’s right to impose a suspension for administrative reasons, with pay, provided the employer is acting to protect legitimate business interests, the employer is acting in good faith and fairly, and the suspension is for a relatively short period. A constructive dismissal claim is a drastic step for an employee, as it involves the employee leaving work (as though they were fired) and then bringing an action for constructive dismissal. The employee will no longer be receiving compensation from employment, and will instead be seeking to recoup that compensation through a court action. An employee bringing a claim for constructive dismissal is making a claim for the severance they would have received had they been dismissed without cause. a)Mitigation Required An employee is still required to mitigate his damages if he is constructively dismissed. Sometimes, the employee will be required to mitigate by continuing to work for his current employer. See Evans v Teamsters Local Union No. 31 (2008 SCC 20) for a discussion of the relationship between constructive dismissal and the employee`s duty to mitigate. b)Condonation If an employee accepts the imposed changes without complaint, he or she is considered to have accepted the change, and will therefore be barred from action; however, employees are generally permitted a reasonable time to determine whether they will accept the changes. c)Repudiation Employees alleging constructive dismissal bear the risk that the court finds they have repudiated their contract of employment by either leaving the workforce or commencing legal proceedings against their employer (or both). 11.Resignation v. Dismissal Not all resignations are resignations, and not all dismissals are dismissals. The legal test is what a reasonable person would have understood by the relevant statements

The imposition of a temporary layoff, where not provided for in the contract, has also been deemed to constitute constructive dismissal (see [[{{PAGENAME}}#7. Redundancy and Layoff | Section IV.E.7: Redundancy and Layoff]] for details).

Suspensions from work may result in a constructive dismissal, particularly if the suspension is without pay. The case of ''Cabiakman v Industrial Alliance Life Insurance Co'', [2004] 3 SCR. 195 reinforced an employer’s right to impose a suspension for administrative reasons, with pay, provided the employer is acting to protect legitimate business interests, the employer is acting in good faith and fairly, and the suspension is for a relatively short period.

A constructive dismissal claim is a drastic step for an employee, as it involves the employee leaving work (as though they were fired) and then bringing an action for constructive dismissal. The employee will no longer be receiving compensation from employment, and will instead be seeking to recoup that compensation through a court action.

An employee bringing a claim for constructive dismissal is making a claim for the severance they would have received had they been dismissed without cause.

a)Mitigation Required An employee is still required to mitigate his damages if he is constructively dismissed. Sometimes, the employee will be required to mitigate by continuing to work for his current employer. See Evans v Teamsters Local Union No. 31 (2008 SCC 20) for a discussion of the relationship between constructive dismissal and the employee`s duty to mitigate. b)Condonation If an employee accepts the imposed changes without complaint, he or she is considered to have accepted the change, and will therefore be barred from action; however, employees are generally permitted a reasonable time to determine whether they will accept the changes. c)Repudiation Employees alleging constructive dismissal bear the risk that the court finds they have repudiated their contract of employment by either leaving the workforce or commencing legal proceedings against their employer (or both). 11.Resignation v. Dismissal Not all resignations are resignations, and not all dismissals are dismissals. The legal test is what a reasonable person would have understood by the relevant statements

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 If the employer makes a fundamental, unilateral change in the employment contract, it may amount to constructive dismissal. Changes to a “fundamental term of  the contract” includes changes such as: significant reduction in salary, a significant change in benefits, a significant change in job content or status, or a job transfer to a different geographic location if such a transfer is not a normal occurrence or contemplated in the employment contract. Generally, a  reduction in pay of more than 10% may result in a constructive dismissal.
-The imposition of a temporary layoff, where not provided for in the contract, has also been deemed to constitute constructive dismissal (see [[{{PAGENAME}}#7. Redundancy and Layoff | Section IV.E.7: Redundancy and Layoff]] for details). Suspensions from work may result in a constructive dismissal, particularly if the suspension is without pay. The case of ''Cabiakman v Industrial Alliance Life Insurance Co'', [2004]  3  SCR.  195  reinforced  an  employer’s  right  to  impose  a  suspension  for administrative  reasons,  with  pay,  provided  the  employer is  acting   to  protect legitimate business interests, the employer is acting in good faith and fairly, and the suspension is for a relatively short period. A  constructive  dismissal  claim is  a  drastic  step  for  an employee,  as it  involves  the employee leaving work (as though they were fired) and then bringing an action for constructive dismissal.  The employee will no longer be receiving compensation from employment,  and  will  instead  be  seeking  to  recoup  that  compensation  through  a court action.   An  employee  bringing  a claim  for  constructive  dismissal is  making  a claim for  the severance they would have received had they been dismissed without cause.   a)Mitigation Required An employee is still required to mitigate his damages if he is constructively dismissed.  Sometimes, the employee will be required to mitigate by continuing to work for his current  employer.    See Evans  v  Teamsters  Local  Union  No.  31  (2008  SCC  20)  for  a discussion  of  the  relationship  between  constructive  dismissal  and  the  employee`s duty to mitigate. b)Condonation If  an  employee  accepts  the  imposed  changes  without  complaint,  he  or  she  is considered  to  have  accepted  the change,  and  will  therefore  be  barred from  action; however, employees are generally permitted a reasonable time to determine whether they will accept the changes.  c)Repudiation Employees alleging constructive dismissal bear the risk that the court finds they have repudiated  their  contract  of  employment  by  either  leaving  the  workforce  or commencing legal proceedings against their employer (or both). 11.Resignation v. Dismissal Not all resignations are resignations, and not all dismissals are dismissals. The legal test is what a reasonable person would have understood by the  relevant statements
+The imposition of a temporary layoff, where not provided for in the contract, has also been deemed to constitute constructive dismissal (see [[{{PAGENAME}}#7. Redundancy and Layoff | Section IV.E.7: Redundancy and Layoff]] for details).
+Suspensions from work may result in a constructive dismissal, particularly if the suspension is without pay. The case of ''Cabiakman v Industrial Alliance Life Insurance Co'', [2004] 3 SCR. 195 reinforced an employer’s right to impose a suspension for administrative reasons, with pay, provided the employer is acting   to protect legitimate business interests, the employer is acting in good faith and fairly, and the suspension is for a relatively short period.
+A constructive dismissal claim is a drastic step for an employee, as it involves the employee leaving work (as though they were fired) and then bringing an action for constructive dismissal. The employee will no longer be receiving compensation from employment, and will instead be seeking to recoup that  compensation through a court action.
+An employee bringing a claim for constructive dismissal is making a claim for the severance they would have received had they been dismissed without cause.
+a)Mitigation Required An employee is still required to mitigate his damages if he is constructively dismissed.  Sometimes, the employee will be required to mitigate by continuing to work for his current  employer.    See Evans  v  Teamsters  Local  Union  No.  31  (2008  SCC  20)  for  a discussion  of  the  relationship  between  constructive  dismissal  and  the  employee`s duty to mitigate. b)Condonation If  an  employee  accepts  the  imposed  changes  without  complaint,  he  or  she  is considered  to  have  accepted  the change,  and  will  therefore  be  barred from  action; however, employees are generally permitted a reasonable time to determine whether they will accept the changes.  c)Repudiation Employees alleging constructive dismissal bear the risk that the court finds they have repudiated  their  contract  of  employment  by  either  leaving  the  workforce  or commencing legal proceedings against their employer (or both). 11.Resignation v. Dismissal Not all resignations are resignations, and not all dismissals are dismissals. The legal test is what a reasonable person would have understood by the  relevant statements
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Difference between revisions of "Employment Law Issues (9:V)"

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