Constructive dismissal is when your employer decides to make a unilateral change to one or more of the fundamental terms of your employment without providing notice or pay in lieu of notice. This often leaves employees with no alternative options than to contemplate leaving their workplace.
The rule for determining whether or not you have been constructively dismissed from your employment is whether the employment contract has been fundamentally changed without notice. What is considered a fundamental change is often up for debate. But what about when your employer decides to relocate your employment to a different geographical location?
Relocation has been viewed as a fundamental change of employment by the courts in the past. But there are some important factors to consider when determining whether or not a job relocation that has been imposed upon you constitutes a constructive dismissal.
1. Your Employment Contract
It is important to review your employment contract to determine if, at the time of signing, relocation was an express (meaning clearly written in the contract that relocation is possible) or implied (meaning your contract does not have any specific writing on the topic but it is clear based on the position that one would assume relocation is possible.)
With an employer, relocation can be implied in several circumstances including whether the employer has relocated several employees in the past, if the business is international and has locations across the globe, and the size of the company.
2. Temporary or Permanent?
Is your relocation going to be a permanent move or is it meant to be a temporary situation with a date of return set?
3. Are other terms changing with the move?
Is your employer changing other fundamental terms of your employment as a result of the relocation? Other fundamental terms would include your rate of pay, benefits, and job duties.
4. Relocation expenses
Will your employer be covering the relocation expenses? Will you experience undue hardship as a result of the move?
5. Bad Faith
Are you being relocated in bad faith? Your employer has a duty to make this decision in good faith and that the move is a result of a legitimate business reason.
The employer’s reason for relocation does not limit an employees’ ability to claim constructive dismissal. The standard relates to the impact this change has on the employee. Each one of the above factors must be evaluated to determine if the circumstances reach the threshold for constructive dismissal.
Previous cases have determined a variety of factors that may influence a judge’s decision. In Reynolds v. Innopac Inc., 1998 CanLII 3558 (ON CA) it was determined that a change in location of work that required a substantially greater travel time would change the way the employee carried out job duties. In Weselan v. Totten Sims Hubicki Associates Ltd. (1997) Ltd. (2001), 16 CCEL (3d) 184 (Ont CA) it was found that a required travel time of an hour and a half and the annual cost associated with such travel would constitute a significant change in the travel time and therefore constituted constructive dismissal.
If you believe that your employer’s relocation request may result in your constructive dismissal, contact Monkhouse Law today for a free 30-minute consultation to discuss your options.