Am I Fired?: Constructive Dismissal and Disabled Employees

One of the most complicated areas of employment law surrounds the doctrine of constructive dismissal. To paraphrase a leading decision of the Supreme Court of Canada, a constructive dismissal occurs where an employer unilaterally makes a fundamental or substantial change to an employee’s contract of employment – a change that violates the contract’s terms. The employer must be seen to have altered the terms of the employment contract to such a fundamental degree that the very nature of the employment has changed. The employee, where this happens, is entitled to consider her or his employment at an end and to sue for damages.

The complexity surrounding this issue arises from two sources: first, whether an employee has been constructively dismissed is not always clear; second, an employee must decide how to respond once it is determined that he or she has been constructively dismissed.

In the case of an employee who has been disabled by an injury or illness, these issues can be triggered when the employee returns to work to find that his or her responsibilities have been altered, or that his or her job has changed altogether. In such circumstances, the employee may have been constructively dismissed. An employer’s obligation to accommodate a disabled employee under Ontario’s Human Rights Code adds another layer of complexity to this situation.

The employee has the onus of proving that a constructive dismissal has occurred. As a rule of thumb, the Courts will ask whether the change effectively amounts to the employee performing a different job.

Whether a constructive dismissal has occurred obviously will depend on the facts of each particular case. In very general terms, grounds of constructive dismissal can include: changes in remuneration, in job duties or in working conditions; geographical relocation; forced resignations, leaves or lay-offs; and/or employer conduct that is incompatible with continued employment, like abusive or humiliating treatment or harassment.

An employee who has been constructively dismissed is faced with several choices:

1. the employee can accept the change and continue working for the employer (in which case he or she likely gives up the right to challenge the constructive dismissal); or
2. the employee must elect in a timely fashion to reject the change and:
   1. quit his or her job and commence a constructive dismissal action; or
   2. communicate his or her rejection of the change clearly to the employer, and continue working under protest while seeking alternate employment. This option may not always be feasible.

If the employee does not elect to reject the change in a timely way, or does not communicate that rejection to the employer in clear and unequivocal terms, then the employee runs the risk of being viewed later by a Court as having condoned the change, which will bar a successful constructive dismissal lawsuit.

All of the foregoing must be viewed in light of the employer’s obligation to accommodate the needs of a disabled employee under the Ontario Human Rights Code. Under section 17 of the Code, people with disabilities have the right to have their individual needs accommodated by their employer, short of undue hardship on the employer, to enable the employee to perform the essential duties of his or her job. This means that an employee has a right to return to work, provided that he or she can perform the essential duties of their job (after being accommodated).

One would hope that employers will not be tempted to rely on their duty to accommodate to justify changes to a disabled employee’s work that might amount to a constructive dismissal. The focus on the essential duties of an employee’s job, under the Human Rights Code, should prevent this from happening. In other words, the focus of accommodation is to preserve the essence of an employee’s job. Similarly, constructive dismissal prevents an employer from changing the fundamental nature of the employee’s job. An employer’s attempts to accommodate the needs of a disabled employee should preserve – rather than alter – the fundamental nature of the employee’s job.

Employees who feel that they might be facing a potential constructive dismissal should consult a lawyer who specializes in employment law, given the complexity surrounding these issues. If you or someone you know has suffered an injury and requires assistance, please feel free to contact Thomson Rogers for a consultation.