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From constructive dismissal to ‘constructive resignation’

Major employment cases brought in front of courts and tribunals tend to shine the light on mistreated employees rather than abused employers.

In the eyes of the public and with the media’s support, these employees — with (mostly) scarce resources and limited experience in legal proceedings — present a somewhat real-life example of David vs. Goliath. In such situations, does the public ever side with the seemingly strong and powerful Goliath?

Some of the employees’ cases do have merit. Among these, constructive dismissal has been abundant. These include situations where employees were forced to resign due to a hostile work environment, such as humiliation, harassment or abuse by superiors.

There were also cases in which a fundamental term in the employment agreement was modified by the employer without the employee’s actual or implied consent, including salary reduction, relocation of the employee and substantial change in the employee’s work hours, position or authority.

In these circumstances, the employee’s coerced resignation cannot be deemed to be voluntary. Instead, it could be seen as the result of an indirect termination by the employer without cause.

Over time, tribunals and courts have heard the pleas of alleged mistreated employees and, in some cases, they have ordered employers to meet their legal and/or contractual obligations.

However, employers’ calls for help have not been met with the same enthusiasm. While employees may fall victim to constructive dismissal, employers may also be subject to “constructive resignation.”

In fact, employees may also force employers to involuntarily dismiss them by taking advantage of their “weaker” position and unilaterally adjusting fundamental terms of their employment agreement without the employer’s consent or prior notice.

After all, some are of the opinion that dismissed employees have stronger public support if their cases are brought to courts.

Real-life illustrations

Some real-life illustrations, summarized below, provide examples of the one-sided decisions of employees that often led to an erosion of trust and, ultimately, to their dismissal:

A customer service representative at a dental clinic was hired to:

1. enter and verify patient information in the central database
2. make post-appointment calls to solicit patient feedback.

However, the second portion of her work was not completed appropriately. The employee received unsuccessful and unco-operative patient replies in her first 25 post-appointment calls and, as a result, decided to cease these calls altogether.

Her manager was not informed of this major change to her work assignments and was only made aware of it when he asked for a report several weeks later. In the meantime, the employee filled her work hours with unrelated tasks, including personal business. The employer was unknowingly forced to pay her a full salary while she only performed half of her work assignments.

A supervisor was hired by a restaurant to serve as an on-site support for front-line staff and handle customer complaints.

Her specific responsibilities were outlined in an employment agreement together with a signed detailed job description.

Four weeks into her position, she decided to focus on secondary tasks and set aside her on-site support responsibilities. In addition, she also moved her office, without prior notice or approval from her superior, to a different part of the building, rendering her physically unavailable to her team most of the day.

An employee in a multi-location company decided, unilaterally and without prior notice, to stop coming to her office and work from home instead.

Once called upon to justify her unauthorized actions, the employee simply answered that it was, in her opinion, an appropriate location change.

‘Joe’ was hired in a seven-days-a-week environment on a Tuesday-to-Saturday schedule. His schedule was designed as such because many key tasks needed to be performed on the Saturday, which happened to be the day on which the supervisor was off.

However, Joe decided to unilaterally change his schedule, without obtaining his supervisor’s approval, to Monday-Friday to attend soccer training on Saturdays.

Faced with the employees’ unco-operative behaviour, insubordination and irresponsibility towards the terms of their employment agreement, employers had no other choice than to terminate them with cause.

Considering disengagement

A different phenomenon, but with similar impact, is “employee disengagement.”

In this type of situation, employees who are physically present at work have demonstrated a continuous decline in their engagement, productivity and attitude towards their employment and, ultimately, loyalty towards their employer. Despite their minimal effort, their revenue remains the same, thus offsetting the balance between their responsibilities and their rewards.

While employees, among other things, have the right to a safe and respectful work environment, employers can also expect, in return, efficient and responsible employees who work towards the success and long-term profitability of the company.

No one should abuse their position and take advantage of their rights at the expense of another. Employers must be held responsible for their wrongful actions and mistreatment of employees just as much as employees should be held accountable for their unfulfilled obligations.

If an employee behaves badly and, for all intents and purposes, effectively resigns — this would be “constructive resignation,” in which case an employer may have cause for dismissal and shouldn’t be obligated to give notice.

Employees have easy access to remedies that allow them to sue their employers — sometimes free of charge depending on the jurisdiction in which they are located — while employers who are victims of wrongdoing by delinquent employees do not have access to the same resources.

This creates a glaring imbalance and leaves some employers, especially small and medium-sized businesses, with little means to incur legal costs against their employees and be compensated for damages and losses incurred by them.

Imposing real penalties for wilful bad behaviour would send a welcome signal.

Justine B. Laurier is a lawyer and partner specializing in labour and employment law at Borden Ladner Gervais in Montreal. She can be reached at jlaurier@blg.com.

Evert Akkerman is an HR professional based out of Newmarket, Ont., and founder of XNL HR. He can be reached at info@xnlhr.com.