Back to work for first time since COVID, and my job has dramatically changed, what are my legal rights?
COVID-19 has caused significant changes to the job market in Ontario and all of Canada, many people have lost their jobs and businesses have been forced to close down. However, even if you remain employed, you may find that your job has drastically changed since the start of the COVID-19 pandemic into a position that may no longer resemble the one you previously occupied.
The law in Ontario dictates that if an employer makes a substantial change to the terms of your employment, then you have the right to treat your employment as having been terminated by the employer, even if you quit your job. At law, this is known as a constructive dismissal, another form of wrongful dismissal. The Supreme Court of Canada clarified in its 2015 decision Potter v New Brunswick Legal Aid Services Commission that a constructive dismissal takes place when:
- even though you have not been expressly terminated by your employer, your employer makes a unilateral decision to change a term of your employment relationship that is sufficiently serious, and
- the employer’s conduct shows that the employer does not intend to be bound by the contract, taking into account the cumulative effect of your employer’s past acts and conduct throughout the time in question
Keep in mind that, when no actual employment contract exists, the terms of your employment are implied by the conditions under which you were working, such as how much you were being paid, your regular hours worked, and benefits you received, among others.
What kind of changes then are considered to be “substantial” or “sufficiently serious”?. Generally speaking, there is no exhaustive list of what changes fall within these definitions, however, in practice, constructive dismissal has been found to occur where an employee quits his or her job after his or her compensation has been significantly (20% or more, but this can vary) reduced, the employee is demoted, or the employee is subject to harassment or discrimination which creates a poisoned work environment.
It is important to note that if your employer has made a change to the terms of your employment, and you continue to work under the new conditions, a court may determine that you have, by your conduct, accepted the changes. How long you can continue to work before you will be deemed to have accepted the new terms of employment can be difficult to assess, so it can be helpful to consult an employment lawyer, especially before you make a decision to quit your job.
If you feel this may apply to your situation,