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How does constructive dismissal work during COVID-19?

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How does constructive dismissal work during COVID-19?
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CLEO (Community Legal Education Ontario / Éducation juridique communautaire Ontario)
CLEO (Community Legal Education Ontario / Éducation juridique communautaire Ontario)

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How does constructive dismissal work during COVID-19?
Reviewed: 
September 4, 2020
Answer

Constructive dismissal is when you can treat yourself as being fired because of changes to your working conditions that your employer makes. A common example of constructive dismissal is when your employer cuts your hours of work or lowers your pay.

Usually, if you claim constructive dismissal:

  • you can make your employer pay you termination pay, which is also called pay-in-lieu of notice, and
  • you can sometimes make your employer pay you severance pay if you are an employee of a large company.

In Ontario, there are 2 ways that you can make a claim about constructive dismissal. You can make a claim:

  • through the Ministry of Labour, which enforces the Employment Standards Act, or
  • through the courts, which enforce the common law, which is law that is made by judges.

Both the Employment Standards Act and the common law have rules about constructive dismissal.

What's been changed

The government of Ontario made an emergency order that changed the rules for constructive dismissal caused by COVID-19. As of March 21, 2020, you cannot claim constructive dismissal based on the Employment Standards Act for temporary cuts to your pay or hours of work because of COVID-19. You are said to be on a "deemed emergency leave".

These changes will last until January 3, 2021. This means that after January 3, 2021 you will no longer be on a deemed emergency leave. 

These changes only apply to the rules in the Employment Standards Act. You can still go to court to claim constructive dismissal for changes to your job that happened before January 3, 2021.

Get legal help

This is complicated area of law. So if you think you've been constructively dismissed, make sure to get legal help.

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