New and unexpected changes in the workplace can be stressful. When an employer changes your job in a big way, it can feel like you’ve just lost your job. In fact, you may have the same legal rights as someone who has been let go outright. Learn your rights if you’re "constructively dismissed."
If your employer changes your work situation in a major way
“My employer told me I was being transferred to our company’s branch in a community 400 kms away. There's no way I could commute. My kids love their school here, and my husband has a good job that he would have to leave. I brought a claim against my employer, and won compensation as if I had been fired from my job.”
– Sharon, Coquitlam
Under the law in BC, it’s possible to be fired indirectly. If your employer changes your work situation in a fundamental way, and you don’t accept that change, you may have the same legal rights as someone who is fired. What happened to you is the legal equivalent of being dismissed. The law calls it “constructive dismissal”.
This applies when your employer does something that:
- changes a key aspect of your employment in a major way, and
- is not something you should have expected, and
- you don’t agree to or accept.
If you’ve been constructively dismissed, you have the same rights as someone who was fired without cause. That includes the right to “notice” or “severance pay” from your employer. Severance pay is money you’re given in exchange for being let go without notice. See our guidance on how much notice an employer needs to give you.
Some changes to your job are not constructive dismissal
Sometimes your employer can change parts of your job without it being considered constructive dismissal. For example, they might ask you to work at a different location in the same city. If you’re reassigned to a different city, that’s a much bigger ask, and more likely to be constructive dismissal.
Some changes might involve things you’ve already agreed to be flexible about. For example, your employer may have told you before hiring you that your work schedule could change. And you said you were okay with that. This would make it unlikely you could win a constructive dismissal claim based on a changed work schedule.
Changes to your job that may be constructive dismissal
Examples of changes serious enough to be constructive dismissal might include:
- Your employer lowers your wages, or refuses to pay what they owe you.
- Your employer takes away your core duties and lowers your position in the organization.
- Your employer abuses you, harrasses you, or discriminates against you in a way that violates your human rights.
With pay reductions, a unilateral pay cut by the employer will almost always amount to constructive dismissal. This is true even where the employer’s reason for the pay cut is financial hardship. An exception is if the employment contract gives the employer the right to change your compensation at any time. Another exception might be if the pay reduction is small or incentive-based—for example, your employer cuts a bonus that accounts for a relatively small part of your total compensation.
The law around what is and isn’t constructive dismissal is complicated. Consider getting legal advice as soon as you feel like there are major changes to your work situation you don't agree with. If you don’t have a lawyer, there are options for free or low-cost legal help.
You may lose some of your rights if you continue to work for your employer
If your employer changes your job, and you continue to work without objecting, you may lose some of your legal rights. This is called “condonation”. It means you’ve declared, by failing to object, that you want to continue in your job despite the changes.
However, choosing to quit your job after your employer has made changes to it can be tricky. So, before making this decision, it would be wise to get legal advice.
A constructive dismissal claim is a drastic step to take. The success of such a claim is based on the facts of each case. It’s a good idea to seek legal advice before deciding to pursue a claim.
You must try to minimize your loss
If you bring a claim for constructive dismissal, you will need to show you took steps to limit your financial loss. The law calls this “mitigation”. A person suffering harm has to take reasonable steps to "mitigate" (or limit) their loss.
For example, if you leave your job saying you were constructively dismissed, you have to make a reasonable effort to seek a new job. If you find a new job, the income you earn from it will be deducted from any constructive dismissal award you win.
In mitigating your loss, you are only required to take the steps that a reasonable person would take. You don't have to make superhuman efforts.
If your employer invites you to stay in your job while you seek a new one, think carefully before turning down the offer. Saying "no" might be seen as failing to mitigate your loss.
Here's an example. Say your employer cuts your salary by 20% without your consent. You decide you can’t afford to keep working at that rate, and bring a claim that you've been constructively dismissed. Your employer invites you to continue working while you look for a new job. If you refuse this offer, it could be argued you didn't mitigate your loss. A court may deny your claim or reduce the amount of money you could receive if you are successful.
Changes to your job may "terminate" your employment under the law
Depending on the changes an employer makes to your job, you may have rights under the main BC law that protects workers. Under this law, if a condition of employment is "substantially altered" by the employer, the director may find that the employment has been terminated. This entitles you to the minimum notice period or severance pay required under the law.
In establishing this claim, you must show a change to your wages, working conditions or benefits which a reasonable person would find to be unfair and unreasonable. You don't have to show that the employer intended to encourage you to leave your employment.
These rights are similar to the common law principle of constructive dismissal, but different. Under the statute law, it doesn't matter how long you wait after the changes before taking action. For example, there is no expectation that you say you're not accepting the changes, and there is no "duty to mitigate" your loss. If—in the judgment of the Employment Standards Branch—the changes substantially alter your employment, your employment is terminated. Full stop. You are entitled to the minimum notice or pay required by law.
Step 1. Get legal advice
If you feel your employer is making significant changes to your job that you don't accept, it’s a good idea to get legal advice right away. You may have the same rights as someone who’s fired without cause—including the right to notice or severance pay. Then again, you may not. Every situation is different, and it can be difficult to prove a claim for constructive dismissal.
The quicker you act, the better. So long as you continue to work, your employer can claim you agreed, by your behavior, to the changes—unless you speak up to make sure they know you don’t agree to the changes.
A legal professional will be able to tell you what your options are, and how much you might be able to claim if you do leave your job. If you don’t have a lawyer, there are options for free or low-cost legal help.
Step 2. Gather your evidence
Some types of documents can help you make your case that your employer is constructively dismissing you from your job. These include:
- your employment contract or job description
- any letters or emails between you and your employer about what you agreed to when you started the job
- letters, memos or emails from your employer discussing changes to your job or your working conditions
- pay stubs
- records of the hours you worked
It helps to keep notes about things that happen at work. For example, say your employer calls you into her office. She tells you your job title is changing from “supervisor” to “sales representative”. And your salary is being drastically cut. Writing down the details of a meeting like this can be very useful if you decide to bring a claim.
Step 3. Decide to quit or continue to work
Once you get legal advice, you need to make a decision one way or the other. If you keep working, you may weaken your claim that you were constructively dismissed from your job. However, if your employer is abusing or harassing you, you may still be able to claim constructive dismissal even if you stay.
Step 4. Consider your legal options
Depending on the situation, you may have two options for taking action.
Option 1. Bringing a legal action against your employer
One option is to sue in court for constructive dismissal. If your lawsuit is for less than $35,000, you can sue in Small Claims Court. It’s faster and less complicated than suing in the BC Supreme Court. If your claim is for less than $5,000, it will be heard by the Civil Resolution Tribunal. This is an online tribunal that encourages a collaborative approach to resolving disputes.
Option 2. Filing a complaint with the Employment Standards Branch
If you think your employer has breached BC's main law protecting workers, you can make a complaint to the Employment Standards Branch. (For a description of when changes to your job may breach that law, see "Understand your legal rights", above.) For the steps to make a complaint, see our page on notice periods and severance pay, under the “Deal with the problem” section.
Either way, note the time limits for taking action
There are time limits for filing a complaint or taking legal action. You must start a complaint with the Employment Standards Branch within six months. The time limit to sue in court is two years. There may be steps you can take to extend the time limit and preserve your rights. A lawyer can explain your options, and help you decide on the best course of action.
It is important to get legal advice at this point. Once you have started on one of these paths, you may be legally prevented from switching to or using the other process. It is also important to understand which option is best suited for your particular problem. If you don’t have a lawyer, there are options for free or low-cost legal help.
Step 5. Apply for Employment Insurance
If you decide to quit, you might be eligible to receive Employment Insurance benefits. You should apply right away, as there are time limits for applying once you’ve left your job. See our guidance on applying for EI.
My employer cut my pay by 25%. Am I being constructively dismissed?
A unilateral pay cut by your employer will almost always amount to constructive dismissal. That is particularly so if the pay cut is substantial, which 25% would be. The pay reduction is a significant change to a key term of your employment, which is grounds for a constructive dismissal claim. For more on pay reductions and constructive dismissal, see “Understand your legal rights”, above.
What are the risks of bringing a claim for constructive dismissal?
The biggest risk is the court finding that you weren’t forced to quit—you quit voluntarily. So you aren’t owed notice or severance pay.
In this case the shoe might suddenly be on the other foot. The court might find that you “repudiated” (broke the terms of) your contract. Depending on what your contract says, you might have to pay your employer for not giving them proper notice before quitting.
Another risk is losing your job and source of income. There’s no guarantee your claim will be successful. If the court rules in your employer’s favour, you may be left high and dry.
Seek legal advice if you think you’re being forced to quit your job. An experienced employment lawyer will be able to help you minimize your risk as you deal with your issue.
The Employment Standards Branch deals with complaints if an employer substantially alters a condition of employment.
Service Canada is the federal agency that administers the Employment Insurance program. They can help with any questions or concerns you have about EI benefits.