Constructive Dismissal and Cause: 2 Ways Your Employer Can End Your Employment and Claim You are Owed Nothing

1. Constructive Dismissal and Cause: 2 Ways Your Employer Can End Your Employment and Claim You are Owed Nothing

2. Nicole Howell nhowell@hhbg.ca 604.696.5116

3. What we’ll cover today: • Employment Law 101: The Employment Contract • Constructive Dismissal • Fundamental Change • Toxic Environment • Cause • The Smoking Gun • Cumulative Misconduct • Investigation: Your Rights and Obligations • Performance Improvement plans (PIP) and Final Warning

4. Part One: The Employment Contract

5. Part One: The Employment Contract • What makes a contract? 1. Offer 2. Acceptance 3. Consideration Employer: Wages/$$$$ Employee: Services

6. Part One: The Employment Contract • Termination clause? • contemplating the end of the relationship at the beginning • may or may not be enforceable • No Termination clause? • BC Employment Standards Act - 8 weeks’ max • Reasonable notice under the common law – 2 years max: • Age • Postion • Length of service • Availability of other jobs

7. Part One: The Employment Contract • What ends an employment contract? The EMPLOYEE may resign to move on to another opportunity; • The EMPLOYER may trigger separation per contract terms or per common law; • OR The EMPLOYER may breach the contract

8. Part Two: Constructive Dismissal

9. Part Two: Constructive Dismissal What is Constructive Dismissal? Employer alters an “essential term” or makes a “fundamental change”: • Compensation • Location • Hours of work • Significant change of duties • Or change of responsibilities • A combination of the above • Safe workplace (i.e. creates/permits toxic work environment)

10. Part Two: Constructive Dismissal Constructive Dismissal: Fundamental Change Change must be: • Unilateral (i.e. you don’t agree with it) • To your (the employee’s) detriment • Permanent or indefinite

11. Part Two: Constructive Dismissal Constructive Dismissal: Toxic Environment • If your boss or co-workers are exhibiting toxic behavior • Yelling, swearing, inappropriate comments etc. • You must report the behavior. It is the employer’s failure to fix it that amounts to the potential breach

12. Part Two: Constructive Dismissal Duty to Mitigate • One complicating factor is that you may have a duty to mitigate even if your employer has fundamentally breached your contract • And that duty to mitigate may require you to remain in the new role (despite the significant change) UNLESS: • There is a significant cut (30% or more) to your pay OR • It would be humiliating and/or embarrassing to remain in the new role

13. Part Two: Constructive Dismissal • Takeaways: • Protest. Tell the employer (preferably in an email so that it is documented) that you are not happy with the change and why – hopefully you can resolve the issue right then and there. • Trial period. Consider whether you are prepared to try the new role / situation for period of time before you make your decision • Talk to an employment lawyer. This doesn’t mean you are ‘lawyering up’. It means you are finding out your rights so that you know your options. Knowledge is power • New job. Start looking at other employment options. • Quit. Walk out and take the position you have been constructively dismissed. Don’t do this without talking to a lawyer!

14. Part Three: CAUSE

15. Part Two: Cause • 2 categories of cause: • The egregious category: the smoking gun • E.g: • Stealing, misappropriating funds • Fraud • Gross Insubordination • Gross breach of company policy • Employer’s Duty To Pay Severance:

16. Part Three: Cause • 2 categories of cause: • The less egregious category: • For example: • Substandard performance • Minor insubordination • Minor breach of company policy • Bad attitude

17. Part Three: Cause • Employer Duties BEFORE Firing For Cause • If the Employer has no smoking gun: • Provide a warning • Explain the expected standard and how you are falling short • Explain what you need to do to • Provide a reasonable period of time for you to improve • Provide additional warnings and additional time to improve, including a clear warning that if you continue to fail to improve you will be terminated with cause

18. Part Three: Cause • No one’s perfect – was it cause despite the misconduct? 3-Factor Test Judges Use: a contextual analysis • What was the nature and extent of the misconduct? • What were the surrounding circumstances? • Is dismissal a proportionate response?

19. Part Four: Investigation

20. Part Four: Reacting to Investigation Employee Rights During Investigation If you are being investigated: • Don’t panic! • Gather information. You should be told the complaint against you • Cooperate. It is important – and in your interest - to tell your side of the story. Unlike like a criminal investigation, there is no right to silence • You may want to talk to an employment lawyer

21. Part Four: Reacting to Investigation Employer Obligations During Investigation • Employers are required to take complaints seriously • Employers should: • gather information from all relevant witnesses; • allow the employee to hear the complaint against them and provide a response; • investigation should be confidential and should minimally disrupt all parties involved.

22. Part Five: Passing the PIP

23. Part Five: Passing the PIP What is a PIP? Performance Improvement Plan • Written set of short-term expectations • Not always possible to achieve as drafted • May contain warning statement: “Failure to achieve/modify conduct will result in discipline up to and including termination”

24. Part Five: Passing the PIP How to handle a PIP Remember employer’s obligation: • Required improvements are reasonable • Clear guidance on required improvements • Reasonable opportunity to improve Your move: • Work with manager to redraft with realistic goals • Ensure resources or training in place if needed • If you don’t agree with the PIP, document your position • Plan B

25. Nicole Howell nhowell@hhbg.ca 604.696.5116