HAVE A BAD BOSS?
YOU CAN OFTEN QUIT, SUE, AND GET MONEY
BY: WINSTON MATTIS
Constructive dismissal has often been described as forced dismissal. It is called forced dismissal because the employer’s conduct is deemed to have severed the voluntary nature of an employment relationship. Since an employment relationship is a “contract”, no employee contracts to endure an employer’s bad or capricious conduct.
Constructive dismissal is very often it is a remedy for employees who experience bad behaviour on the part of their bosses. There is a very broad range of behavior that courts have found to constitute constructive dismissal, including a bad performance review.
Faced with the bad behavior of a boss employees very often feel trapped in abusive employer-employee relationship and do not know what to do. For many employees the fear of leaving the job, even when managed by an abusive manager, or when working a poisoned environment is real. then there are financial considerations. The desire to quit can be so real, overwhelming and confusing, all at the same time.
It is amazing how many people who are completely unaware that the law does not sanction bad behavior on the part of bosses. It is alarming the number of people who simply do not know that staying in an abusive relationship is not required by the law. Yes, it is actually true. When caught in an abusive relationship, an employee in a non-unionized position the common law world can quit and sue the employer for “constructive dismissal”. That is true folks. The mere fact that an employee quits does not necessarily mean that there is no remedy for the employer’s conduct.
Here are a few principles about constructive dismissal cases:
- An employee can actually continue to work and maintain an action for constructive dismissal. There is actually no requirement that the employee actually quits before starting a lawsuit for constructive dismissal. Taking this approach can at times provide tactical consequences that benefit the employee.
- Getting a monetary remedy requires starting a law suit. Several factors impact of the advisability of commencing a lawsuit seeking damages for constructive dismissal;
- When assessing whether an employee has been constructively dismissed courts typically consider the imbalance of power between the employer and the employee;
- The cost versus benefits of maintaining a constructive dismissal lawsuit in a high court is often not worth the available damages. Sometimes, the amount of legal fees expended is not worth starting the law suit.
- Constructive dismissal can be risky business because all of the facts relevant to the case are assessed by the adjudicating court;
- In constructive dismissal cases, liability is virtually always at issue, except in cases in which the employer’s conduct was so egregious;
- Like most other law suits, a constructive dismissal case takes on a life of its own, and can become emotionally taxing on everyone involved.
So, what should you do when you believe that your boss, of company’s bahaviour amounts to a repudiation of the employment contract? Here are a few tips:
- You need to acknowledge what is happening and do not feel like you have to sugar coat it, or worse yet talk yourself into believe that it is not happening. If it looks like an elephant, walks like an elephant, has a trunk like an elephant, it is most likely an elephant;
- Document events as they occur, or as close to the events as they occur. Your notes documented close to the occurrence of the event have a different evidentiary value than when made weeks or months after the events;
- Document the names of people who witnessed the event and who can be part of the narrative, if it becomes necessary;
- Identify dates, times, people and other facts related to the events separate from the emotional reactions to the event(s);
- Your emotional responses are important. So, document those. Stay away from documenting opinions. It is often very difficult distinguish an opinion distinct from a fact. To the extent that you are able to distinguish between these two things, stay away from opinions;
- Document the organization’s response to your questions, inserting quotations, if possible. Make sure the quotations are the exact words of the person. Add or subtract nothing from the speaker’s words;
- If you start experiencing extreme emotional responses to the events, make sure you not only document the emotional response, but go see your doctor. Often times, your family doctor is the most accessible. Moreover, in Canada, the family doctor quarter backs access to other clinicians; fully discuss with your family doctor the impact of the events upon you, your psyche, your family relationships, etc.
- If you become medicated as a result of the impact of the experience, keep a record of all of the required medication together with dosage.
- Speak with a lawyer to determine whether the economics of your case warrants the commencement of a law suit.
If you become entangled in a constructive dismissal case, remember that patience is your friend. Staying calm is good therapy. And broadcasting the facts to folks other than your advisors may end up dumping your case out of a court house. So, learn to zip your lip with a paper clip, except when talking to your advisors bound by an ethical duty of confidentiality.
When everything else fails, such submit a request to WINN, and we will interview you and publish your story on our show appropriately titled: Quit, Sue, and Get Money.