Constructive Dismissal
Zayouna Law Firm advises Ontario employees whose jobs have been changed out from under them. Before you resign, find out whether the law already treats you as dismissed.
Nobody fired you. The job you were hired for ended anyway.
Constructive dismissal is what the law calls it when an employer changes a fundamental term of your employment without your agreement, or behaves in a way that shows it no longer intends to be bound by the contract. The pay is cut, the role is hollowed out, the reporting line is moved, or the workplace becomes intolerable. Nobody says the word fired, and the job you agreed to has still ended.
This is the hardest employment claim to get right, because the employee usually has to resign to advance it, and resigning at the wrong moment can end the claim instead of starting it. Accept the change and carry on too long and a court may find you agreed to it. Walk out over a change that was not fundamental and the resignation may simply be a resignation.
YOU DESERVE TO BE TREATED FAIRLY
What counts as constructive dismissal
The test is not whether the change felt unfair, it is whether it went to the foundation of the job. A single unilateral change to a fundamental term can be enough. So can a series of smaller changes, or a pattern of conduct that taken together shows the employer is no longer honouring the agreement it made with you.
Context decides close cases. A modest change a contract expressly allows may be permissible, while the same change to a role built on that term may not be. It is also worth saying plainly that many unwelcome changes are lawful. A new manager, a reorganized team or a worse commute is not by itself a claim, and resigning over one leaves you with a resignation.
CHANGES THAT CAN AMOUNT TO DISMISSAL
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What to do before you resign
The strongest constructive dismissal files are built while the employee is still employed. Object to the change in writing, keep working while you get advice, and document what the job looked like before and after. Silence is the risk, because an employer will later argue that carrying on without complaint meant accepting the new terms.
- Your employment agreement and any clause allowing the employer to change duties or pay
- The written notice of the change, or a dated note of when it was announced verbally
- A before and after comparison of duties, reporting line, hours, pay and bonus or commission structure
- Your written objection and any reply
- Complaints already made about conduct, and how the employer responded
What happens if you wait?
An employee who works under a changed arrangement without objecting may be found to have condoned it, which converts the new terms into the agreed terms. There is no fixed deadline, only a reasonable period to consider the change and respond. That period is measured in weeks rather than months, and it is shorter than most people assume.
Is an unpaid layoff a dismissal?
An unpaid layoff can amount to constructive dismissal unless the employment contract permits it or the employee agreed to it, even where the Employment Standards Act would treat the layoff as temporary. The statute and the common law answer different questions here, and a layoff that is lawful under one can still be a dismissal under the other.
Do you have to keep working?
Ontario law expects a dismissed employee to mitigate, which can mean staying on in the changed role while the claim proceeds, unless doing so would be humiliating or the working relationship has broken down. Refusing to stay without a defensible reason can reduce what is recoverable, so get advice before you decide.
Our Constructive Dismissal Experience
Samiya Ahmad assesses the change, protects your position in writing, and advances the claim from there. Book a free consultation.
Results
These claims turn on the record built before the resignation, which is why the first step is usually a letter putting the employer on notice, sent while you are still employed.
Relationships
These files need quick access to your lawyer, because the decision about when to resign cannot wait for a callback. The firm works in several languages, with interpreters available.
Recovery
A successful claim is compensated as a dismissal, so the notice period is assessed on your age, length of service, position and job market, not on the pay that was taken away.
Service Areas
Constructive Dismissal Etobicoke
Constructive dismissal advice for Etobicoke employees, from the firm’s Four Seasons Place office in Etobicoke.
Constructive Dismissal Toronto
Constructive dismissal claims against Toronto employers, including demotions after restructuring.
Constructive Dismissal Burlington
Constructive dismissal advice for Burlington and Halton employees, from the Ironstone Drive office.
Constructive Dismissal Brampton
Constructive dismissal claims for Brampton employees, including shift and location changes.
Constructive Dismissal Mississauga
Constructive dismissal claims for Mississauga employees, including pay and commission cuts.
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Common Questions About Constructive Dismissal
What is constructive dismissal in Ontario?
It’s a dismissal the employer never announced. Where an employer unilaterally changes a fundamental term of employment, or behaves in a way showing it no longer intends to be bound by the contract, the law can treat the employment as ended by the employer. The employee is then owed reasonable notice as though dismissed outright.
Do I have to resign to claim constructive dismissal?
Usually yes, and the timing matters more than the decision. Object in writing first and get advice before resigning, because resigning at the wrong point can end the claim.
Is a demotion constructive dismissal?
It can be, where the demotion removes responsibility, status or pay that was fundamental to the role. A minor change in title, on its own, generally isn’t.
Can a temporary layoff be constructive dismissal?
Yes, unless your contract allows an unpaid layoff or you agreed to it. A layoff treated as temporary under the Employment Standards Act can still be a dismissal at common law.
Can you get EI after a constructive dismissal?
Possibly. Service Canada looks at why you left, so a documented objection and a clear record of the change help. Benefits can also be affected by a severance settlement.
How long does a constructive dismissal claim take?
Negotiated resolutions can take a few months. A claim that proceeds through the courts takes considerably longer, and no timeline can be promised at the outset.
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If you are facing wrongful dismissal, workplace harassment, or another employment dispute, our employment lawyers help individuals across Ontario understand their rights and pursue fair outcomes.