What is Recompense for a Constructive Dismissal?
Constructive Dismissal
Constructive Dismissals in Canada are very similar to those in the United States. There is a right of appeal that can be exercised if an employee files a grievance within a specified time period. If this appeal is not successful then the employer has the right to implement the grievance through normal employment procedures. This usually includes a formal written notice to the employee followed by a meeting to discuss the employees’ grievances.
The first step in a constructive dismissal is for the employer to prepare a detailed explanation of what happened during the meeting. The employer will also want to gather information about the employee’s testimony, as well as witness testimony. There may also be copies of notes and letters that were sent to the employee. It is also usual for an appeal to be filed in writing.
After an appeal has been filed, the employee will have thirty-five days to counter the claim. If the appeal is not accepted, the employee will have up to three months in which to file an action against the employer. If the appeal is accepted then the employer has up to ninety days to make its reply. If the employer’s reply is unsatisfactory then the employee can make another appeal.
What is Recompense for a Constructive Dismissal?
Both parties then have up to ninety days to go before an arbitrator. If the two parties can’t come to an agreement on the matter the arbitrator will refer the case back to the Employment Appeal Department. If the dismissal is due to discrimination the Employee Rights Act applies. The next step would be to file a complaint with the Employment Appeal Department. The case can be heard by an Independent Employment Tribunal. This is an employment court and if both sides agree to continue to work together there is an agreement made.
If the dispute was about a constructive dismissal there are some exclusions. These exclusions are: abuse of a sexual character, harassment of a sexual nature, discrimination of a sexual nature and other serious contraventions of the workplace regulations. There are also special provisions for claims of assault and battery. The procedure to make a constructive dismissal claim is more complex than most cases. It will involve detailed documentation from witnesses, an investigation by the Employment Appeal Department and a written claim.
This process can take several months to reach a successful conclusion. In some cases the claim may also be declined. In such cases the Employment Appeal Department will order an appeal hearing. An Employment Attorney who is well versed in this area can also advise their clients about the likely outcome of the appeal hearing. This advice can give one a better understanding of the likely outcome and also helps them to prepare their case.
