When an employee’s hours and pay are reduced, what can they do?
An issue that frequently comes up is when an employer suddenly changes an employee’s working hours and pay. Employees turn to Z Legal Litigation Lawyers to find out what their rights are in these situations.
When an employer’s conduct shows an intention no longer to be bound by the employment contract, the employee has the choice of either accepting that conduct or changes made by the employer or treating the conduct or changes as a repudiation of the contract by the employer and suing for constructive dismissal. An employee will be found to have been constructively dismissed if the employer has breached the employment contract and the breach substantially altered the terms of the contract. If an employee claims that they were constructively dismissed, the burden of proof rests on the employee to show that the employer’s act evinced an intention no longer to be bound by the contract. Unilateral and substantial changes to an employee’s compensation may be sufficient to constitute constructive dismissal. (Potter v. New Brunswick Legal Aid Services Commission) Construcdtive dismissal is a complex area of the law, and each situation is unique, so it’s best to speak with an Employment Lawyer at Z Legal to determine what damages you may be entitled to.
Unilateral change to a fundamental term of an employment contract by the employer constitutes a repudiation of the contract. An act of repudiation carries consequences, which depend on how the employee responds to the repudiation. The employee may accept the change in the terms of employment, either expressly or implicitly through apparent acquiescence, in which case the employment will continue under the altered terms. Alternatively, the employee may reject the change and sue for constructive dismissal. Third, the employee may make it clear to the employer that he or she is rejecting the new term. (Wronko v. Western Inventory Service Ltd.)
An employee must make his/her election about whether or not to accept an employer’s unilateral changes to the employment agreement within a “reasonable period of time”. Reasonableness is not a rule but a standard, and it is a notoriously vague standard at that. Thus, whether an employee acts within a reasonable period of time is a fact-specific determination that must be made by the trial judge based on consideration of a number of factors. In the usual case, a finding of condonation occurs where an employee has continued to work or resumed work despite the employer’s actions. But continuing or resuming work is not determinative of condonation; employees must have a reasonable period of time to attempt to resolve workplace problems short of litigation. (McGuinty v. 1845035 Ontario Inc. (McGuinty Funeral Home)) If you believe you’ve been constructively dismissed, it’s important to speak with an Employment Lawyer right away, as any delay may jeopardize your claim.
The employee must inform the employer that he considers the employer’s actions to amount to constructive dismissal, as acceptance of the new status quo can be construed as a waiver if the employee continues beyond a reasonable time period without comment. (Guzzo v Randazzo et al.)
With respect to the time period in which an employee may claim constructive dismissal, an employee is not required to elect at once, and will not lose rights merely by waiting or by negotiating in the hope of a resolution. However, once a repudiation is accepted by the innocent party, however, it is generally held to be irrevocable. (Davies v. Canadian Satellite Radio Inc.)
Damages for wrongful dismissal include the salary the employee would have earned had the employee worked during the notice period, less any amounts credited to mitigation. (Sylvester v. British Columbia)
In determining the quantum of damages to be awarded to an employee for wrongful dismissal, courts should take into account mitigation income that was earned during the notice period, regardless of whether income received from a job that was inferior to the one from which the employee was dismissed. However, income earned during the statutory notice period, (as opposed to the common law notice period, if applicable,) is not deductible as mitigation income. (Brake v. PJ-M2R Restaurant Inc.)
If you believe you’ve been constructively dismissed, speak with an Employment Lawyer at Z Legal Litigation Lawyers today.