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Constructive dismissal occurs where an employer does not fire an employee but instead changes the working conditions for an employee to the extent that it is considered a termination of employment in law. In this situation, an employee is forced to stay at work and accept the changes or to walk away and claim constructive dismissal.  This is one of the hardest decisions an employee is likely to have to make in their career and for this reason, it should only be made with proper employment law expertise.

If you are successful at claiming constructive dismissal how much can you get?

Compensation for a constructive dismissal claim is determined on a case-by-case basis (including whether you have a contract restricting your entitlements), however, it would not be unusual to see that an employee receives one month of income (including bonuses etc.) per year of service.  This can be paid out in the form of a lump sum or as a continuation of salary/benefits. Specifically, in the event your employment is found to have been terminated (through constructive dismissal), courts aim to provide enough compensation based on an assessment of how long it will likely take you to find another job. While the courts will often look at a range of factors when setting this amount, the following four factors tend to have the greatest impact on determining the payments:

  • Age;
  • The type of role you had;
  • The length of service; and
  • The availability of similar employment.

It is important to remember that dismissed employees have a general duty to make reasonable efforts to mitigate their losses in income by actively seeking comparable employment after their dismissal and that any compensation amounts which exceeds the minimum notice and severance pay obligations under the applicable employment standards legislation are subject to reduction once you obtain new employment and start to earn a new income. This is another reason why it’s important to seek proper employment law counsel to maximize the chance that you can negotiate a favourable deal. If you are thinking about making a claim against your former employer and are seeking legal advice in relation to awards, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

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