Laws on Canada
There is a relatively new area of Employment Law in Canada that some employers are starting to learn about and welcome – the “Canada Bargain” hearing. Employment Lawyers has begun to recognize that by providing flexibility for an employee, rather than forcing them to accept an unfair employment circumstances, an employee may be able to recover possible damages for their situation. The Employment Rights Act is Canada’s basic law that protect all employees, but even with that in mind there are certain aspects of the Employment Rights Act that leave room for compromise or arbitration that can be used by either the employee or their employer. One of those is the idea of constructive dismissal.
In Canada, a constructive dismissal is an unfair dismissal that can happen in any type of situation. It can occur at the hands of management, a colleague, or even the employer himself. In this situation, if the employee does not understand what the dismissal means, they can ask for a meeting with their supervisor or their employer to find out what exactly the term means. If the employer tells the employee what the dismissal means but does not offer any type of explanation for it, then the employee has the right to take their case to court or appeal to the Human Rights Tribunal. However, if the employer goes as far as offering an explanation, the employee may not be as likely to accept that explanation, or take their case to court.
A common reason that employers in Canada choose to settle out of court is to avoid hefty fines and to save money on their insurance premiums. If a settlement is reached before going to court, the employer is in full compliance with all of the laws that apply. However, the courts tend to take a very long time to make a decision. They also do not accept the same arguments from both sides, that the parties do in a courtroom. This can be frustrating to an employee, who is trying to get their case dismissed.
constructive dismissal toronto
Laws on Canada Constructive Dismissals
To start the legal proceedings, an employee must first send out a written notice to the employer that states the nature of their claim. If the employer has hired a lawyer, this person must then file a motion with the courts, which is known as a R.S.O.R. This motion requests that the employer recognize that they have actually been guilty of Canada constructive dismissal. It must then request the courts to allow them to request that the terms of their employment to be changed to something else, such as a notice of dismissal.
In most cases, the employee’s argument will be stronger at court, because they will have more evidence. For instance, if the employee did not get a chance to explain their position to anyone during the disciplinary hearing, the court may rule in favor of the employer. If there were witnesses present at the disciplinary hearing who would likely discount the employee’s side of the story, the court may rule against the employee. The employee may also argue that the employer has a duty of care to the employee, and that the employee’s position was terminated as a result of this duty of care.
Canada’s laws on constructive dismissal are very specific and should be reviewed by an experienced employment or legal advisor. There are even times when the act can be applied retroactively. For example, if an employee quits without given notice, the employee may claim that they have been unfairly dismissed. However, because there have been so many cases written about this topic in the past, it is unlikely that a court would ever rule in favour of an employee in a case of constructive dismissal.