More employment cases are being decided in the Small Claims Court. It has a limit of claims of $25,000 or less.

Historically, it is challenging for an employee to successfully sue for constructive dismissal. This takes place when the employee feels the situation has been made intolerable by the employer, justifying the employee to leave employ and sue for damages as if the employee had been terminated.

To successfully win a case for constructive dismissal, an employee must typically prove:

1.   a fundamental breach of the employment agreement or relationship by the employer;

2.   the employee did not condone that breach; and

3.   the employee did not unreasonably refuse a return to employment or to mitigate damages.

The case: Janice Wiens v. Davert Tools Inc. (2015, Ontario Small Claims Court)

In this case, the employee succeeded. The Court found the employee had been constructively dismissed and awarded her 8.5 months of salary based on her 8.5 years of employment.

The employer had argued that she quit and that it had complied with its obligations under the Employment Standards Act, 2000 (i.e., it did nothing wrong).

Effectively, the Court found a constructive dismissal based on:

– several layoffs of the employee, even though they technically complied with the Act

– a change in the reporting structure for the employee

– a yelling incident (by the owner/boss)

So, it is possible to succeed in constructive dismissal claims, but due care must be given to the necessary things to prove before leaving your employ and claiming constructive dismissal.

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We’re here to help – [email protected]  www.wardlegal.ca




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