CPHR Alberta Magazine - Summer 2018 - 19

Constructive
Dismissal Basics
Once a contract of employment has
been formed, whether this is in
writing, verbal or implied, neither
party has the right to change a significant term of the contract, unless
both parties agree to the change.
In certain circumstances, unilateral changes by an employer to an
employee's position, job responsibilities, compensation package, or other
terms, can amount to a potential
constructive dismissal. The issue
is whether the changes that have
been made to the employment relationship are so significant as to
amount to a breach of a fundamental
term and condition of the employment contract. If a breach of a fundamental term has occurred, this
gives rise to a potential constructive dismissal claim. Also, where
the employer, through its actions
(or lack thereof), has created a situation which makes it untenable for
an employee to continue, in certain
circumstances, an employee may
argue that the employer's conduct
constitutes a constructive dismissal.
The damages a Court would award
an employee in a successful action
for constructive dismissal are equivalent to the damages the employee
would receive had the employee been
wrongfully dismissed.
To determine whether a unilateral
change gives rise to a potential constructive dismissal, the Courts will
consider three general issues:
1. What are the terms of the employment contract?
2. Has there been a breach of one,
or more, of those terms?

3. If there has been a breach, is it a
fundamental breach?
For the proactive employer, the
important question is: How can an
employer implement a fundamental
change to an employee's conditions
of employment without risking a
lawsuit for constructive dismissal?
Generally, there are two methods
to accomplish such a change in a
legally acceptable manner.

"Reasonable" Notice
No matter how dramatic the desired
change to the employee's conditions
of employment, it can be appropriately implemented so long as the
employee is given sufficient "reasonable" notice of the change. The
required length of the reasonable
notice period to unilaterally implement a change to a fundamental
term is determined by the common
law, and is the same as the reasonable notice period that is required
to give the employee notice of termination without cause. Basically,
the period of reasonable notice will
vary from individual to individual
depending on the employee's years
of service, position, and age.
If at the time of hiring an employee
you specifically agreed on the
amount of notice required to terminate the employment relationship
without cause, then that amount is
the same amount of notice that must
be provided to legally implement a
fundamental change.

Informed Consent
As discussed above, a fundamental change is only a constructive
dismissal if the change is unilaterally imposed. As a result, if the
employee consents to the change
the employee waives his or her right
to allege constructive dismissal.
While there are no formal requirements for consent, the bottom line
is an employer must be able to prove
clear consent was obtained if the
change to terms was subsequently
challenged by the employee. The
steps we recommend to properly

©ISTOCK.COM/MONKEYBUSINESSIMAGES

CHANGE IN the workplace is a constant presence. Restructuring and
reorganizing are human resource
realities of the current times. What
is constructive dismissal? What are
the consequences of constructive
dismissal, and how can you avoid
hidden traps and risk in this area
when implementing changes within
your workplace?

CPHR Alberta Magazine | Issue 2 | 19


http://www.ISTOCK.COM/MONKEYBUSINESSIMAGES

Table of Contents for the Digital Edition of CPHR Alberta Magazine - Summer 2018

Leadership Matters
A Vision for 2018 Workplaces
Cultivating a Culture of Innovation: Innovation is People!
Do You have these Types of Fraudulent Claims on Your Benefits Plan?
How to Avoid ‘Career Misery’ in Your Workplace
Legal Corner: Rolling Out New Employment Contracts?
Legal Corner: Demystifying Constructive Dismissal
Legislation Update: Is Pay Equity Legislation Coming to Alberta?
Suppliers’ Guide
Index of Advertisers/Advertisers.com
CPHR Alberta Magazine - Summer 2018 - Intro
CPHR Alberta Magazine - Summer 2018 - cover1
CPHR Alberta Magazine - Summer 2018 - cover2
CPHR Alberta Magazine - Summer 2018 - 3
CPHR Alberta Magazine - Summer 2018 - 4
CPHR Alberta Magazine - Summer 2018 - Leadership Matters
CPHR Alberta Magazine - Summer 2018 - A Vision for 2018 Workplaces
CPHR Alberta Magazine - Summer 2018 - 7
CPHR Alberta Magazine - Summer 2018 - 8
CPHR Alberta Magazine - Summer 2018 - 9
CPHR Alberta Magazine - Summer 2018 - Cultivating a Culture of Innovation: Innovation is People!
CPHR Alberta Magazine - Summer 2018 - 11
CPHR Alberta Magazine - Summer 2018 - 12
CPHR Alberta Magazine - Summer 2018 - 13
CPHR Alberta Magazine - Summer 2018 - Do You have these Types of Fraudulent Claims on Your Benefits Plan?
CPHR Alberta Magazine - Summer 2018 - 15
CPHR Alberta Magazine - Summer 2018 - How to Avoid ‘Career Misery’ in Your Workplace
CPHR Alberta Magazine - Summer 2018 - Legal Corner: Rolling Out New Employment Contracts?
CPHR Alberta Magazine - Summer 2018 - Legal Corner: Demystifying Constructive Dismissal
CPHR Alberta Magazine - Summer 2018 - 19
CPHR Alberta Magazine - Summer 2018 - 20
CPHR Alberta Magazine - Summer 2018 - Legislation Update: Is Pay Equity Legislation Coming to Alberta?
CPHR Alberta Magazine - Summer 2018 - Suppliers’ Guide
CPHR Alberta Magazine - Summer 2018 - 23
CPHR Alberta Magazine - Summer 2018 - 24
CPHR Alberta Magazine - Summer 2018 - 25
CPHR Alberta Magazine - Summer 2018 - Index of Advertisers/Advertisers.com
CPHR Alberta Magazine - Summer 2018 - cover3
CPHR Alberta Magazine - Summer 2018 - cover4
CPHR Alberta Magazine - Summer 2018 - outsert1
CPHR Alberta Magazine - Summer 2018 - outsert2
CPHR Alberta Magazine - Summer 2018 - outsert3
CPHR Alberta Magazine - Summer 2018 - outsert4
CPHR Alberta Magazine - Summer 2018 - outsert5
CPHR Alberta Magazine - Summer 2018 - outsert6
CPHR Alberta Magazine - Summer 2018 - outsert7
CPHR Alberta Magazine - Summer 2018 - outsert8
CPHR Alberta Magazine - Summer 2018 - outsert9
CPHR Alberta Magazine - Summer 2018 - outsert10
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