Most employers are aware that there are legal impediments to
unilaterally changing the terms and conditions of an employee's
employment, even if there is a legitimate business rationale for
that change. The major legal impediment is constructive
An employer who, for example, unilaterally and materially cuts
an employee's salary will have constructively dismissed that
employee. How then to address the fiscal and operational pressures
placed on the business by a global economy in the face of potential
liability for constructive dismissal?
In this paper, Davis LLP's Richard Press provides a basic
review of the law of constructive dismissal and discusses
strategies to address potential liability. This also includes an
analysis of the contractual principles that underscore a
repudiation of the employment agreement, and considers possible
responses to repudiation by the employer of the employment
agreement, including acceptance of the changed terms.
The paper then moves on to non-legal strategies that could be
used to avoid, or at least minimize, the likelihood of constructive
dismissal claims. This focuses on strategies that can be employed
in the face of legitimate business restructuring that responds to
external factors, such as market pressures or a global
The paper next considers where employees refuse to agree to
unilateral changes, strategies to minimize the liability of
constructive dismissal. The first such strategy is employing
mitigation to defray constructive dismissal liability. The second
strategy is the effective use of notice to avoid constructive
Finally, the paper concludes with practical tips in prosecuting
and defending constructive dismissal complaints
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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