should-this-client-sue

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

Six months later, 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.

Who you call

Employment lawyers.

What you ask

Is your client getting a raw deal?

What they say

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.

Read: Help a wealthy client who’s lost her job

When courts look at constructive dismissal, they look at the 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.

Janine might be misinterpreting her treatment. Perhaps there’s an important project her employers are lining up for her while assessing her skill sets. 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: who she spoke to, the assurances she was given, and the projects and meetings from which she was excluded after talking to her employers. But finding people who’ll corroborate your story in the context of a lawsuit is near-impossible, because people will fear losing their own jobs.

Read: Canada’s long-term unemployment still high

And the upside of suing here is low. Under the Employment Standards Act, she’d be entitled to one week of severance compensation for six months of work. If she were indeed constructively dismissed, she may be entitled to common-law damages, which could be between one and 1.5 month’s pay. 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

Barbara Green

senior associate and commercial litigation lawyer, Robins Appleby LLP

Dan Palayew

Dan Palayew

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

Evelyn Juan is a Toronto-based financial writer.

Originally published in Advisor's Edge

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