When to sue your employer

Janine is a top civil engineer at a prestigious Canadian firm. She recently accepted a job offer from a competing company that gave her a better title and a 20% raise.

Six months into her new position, though, things aren’t so rosy. She’s been taken off important projects and left out of big meetings. She regrets leaving her previous firm. Further, she believes her employer isn’t giving her the chance to prove herself, after luring her away from a good job. In her eyes, the situation has all the signs of pending constructive dismissal. She’s considering suing.

Here’s what employment lawyers think she should do.

Barbara Green: Constructive dismissal is difficult to prove. Factors include changes in the employee’s job description, lower pay, sudden change in work location and whether the employer’s made it impossible for the employee to do his or her job.

When courts look at constructive dismissal, they assess the employer’s overall conduct pattern and how long it’s gone on. But no rule regarding when things may turn sour says a year would be more reasonable than six months.

An uphill battle

Proving constructive dismissal is hard. So weigh claims carefully and bring up concerns with your employer. If it’s a case of miscommunication, filing a constructive dismissal claim will wreck the relationship—and suing your employer without cause is a losing battle.

It’s always possible Janine is misinterpreting her treatment. Perhaps there’s an important project her employers are lining up for her while assessing her skills. She might want to express concerns in a non-confrontational way: she could tell them she enjoys working there and hopes to participate in more challenging projects. Then, give it a few more months to see if there’s continued exclusion.

She should document everything: whom she spoke to, the assurances she was given, and the projects and meetings from which she was excluded after talking to her employers. But she should realistic about finding people who’ll corroborate her story in the context of a lawsuit. It can be near-impossible, because people will fear losing their own jobs.

And the upside of suing here is low. Under the Ontario Employment Standards Act, she’d be entitled to one week of severance compensation for six months of work. If she was indeed constructively dismissed, she may be entitled to common-law damages, which could be between one and 1.5 month’s pay. Further, if she was induced to leave, she might be entitled to additional damages based on the length of service at both her old and new employers.

Suing is public, so word could get around that she’s an aggressive employee. Companies might not want to take her in if they see her as a potential threat. That consequence might not be worth getting a few months’ pay in lieu of notice.

Worse, if she waits to get fired and they fire her for cause, she won’t be entitled to any compensation.

Dan Palayew adds: The perception of other employees is critical here. How do others view what’s happening to Janine?

If you spoke to three or four other employees in the organization who work in positions below and above Janine, and they suspect she’s being demoted, there may well be a case of constructive dismissal.

The experts

Barbara Green

senior associate and commercial litigation lawyer, Robins Appleby LLP

Dan Palayew

partner and litigation leader of the Ottawa labour and employment group at BLG