The concept of constructive dismissal is sometimes misunderstood, even though it is common in practice. Indeed, it may happen that an employer so significantly modifies an employee’s working conditions that the employee has no real choice but to leave their job. Even if the employee resigns voluntarily, such a situation may constitute constructive dismissal. It may then be treated as a dismissal without good and sufficient cause under Quebec law.

What is constructive dismissal?

Constructive dismissal occurs when an employer imposes major and unilateral changes to the employment contract. These changes make the continuation of employment unreasonable for the employee. Thus, even without an explicit dismissal, the law may recognize a termination of the employment relationship.

Examples of constructive dismissal

Several situations may constitute constructive dismissal. For example, when the employer :

• Significantly reduces the employee’s salary;
• Reduces their working hours;
• Forces them to accept working conditions inferior to those set out in the original contract;
• Imposes a significant change in the workplace location.

Analysis by the court

To conclude that constructive dismissal has occurred, courts first assess the modifications imposed by the employer. Indeed, they must determine whether these changes are substantial. Thus, the test applied is objective. The judge asks whether a reasonable person, placed in the same circumstances, would have considered the modification to be substantial.

What should you do if you are a victim of constructive dismissal?

Several Quebec statutes provide different remedies in cases of constructive dismissal, notably the Act respecting labour standards. Thus, an employee may exercise a specific remedy.

Indeed, section 124 allows an employee with two years of uninterrupted service to file a complaint. This complaint must be filed with the CNESST within 45 days following the dismissal. The CNESST may then refer the complaint to the Administrative Labour Tribunal (the “ALT”).

The burden of proof before the ALT

The ALT may then hold a hearing to hear the parties’ arguments. The burden of proof initially rests with the employee, who must demonstrate :

• That they have at least two years of uninterrupted service with the employer;
• That they were dismissed;
• That they do not have another equivalent remedy;
• That they filed their complaint within 45 days of the dismissal.

Powers of the Administrative Labour Tribunal

The ALT may issue several orders depending on the circumstances. Thus, it may notably :

• Order the employer to reinstate the employee in their position;
• Order the employer to pay compensation to the employee;
• Issue any other order it considers appropriate.

Why consult a lawyer?

Constructive dismissal is not always easy to identify. Thus, a hasty decision may have significant consequences for the employee. Moreover, an improper assessment of the situation may limit the remedies available.

A lawyer specializing in labour law can help you assess your situation. They can also assist you in exercising your remedy in order to fully protect your rights and interests. Our firm can therefore help you fully protect your rights and interests.