Understanding the Concept of Constructive Dismissal

Concept of Constructive Dismissal

A constructive dismissal in British Columbia is not the same as what you may know in Canada. While both are based on similar laws that allow employers to fire employees for bad behavior, the way they are administered and the reasoning behind them can differ quite a bit. As in other parts of the country, when an employee is accused of wrongdoing, he or she can appeal the decision to a hearing known as an Employment Tribunal. If the ruling at that point is favourable, the employee can be formally discharged. But if it is the majority opinion at the tribunal, the employee is often given the chance to accept the ruling outside of court.

constructive dismissal

While it is rare, it is also possible for a dismissal to be instigated for simple reasons such as a misunderstanding of the rules. Under these circumstances, management has the ability to give their employee a choice between a reprimand and immediate dismissal. However, there are certain types of employment that cannot use this option such as union activities, some controversial cases of discrimination, and inappropriate comments. Where a dismissal is court ordered it is referred to as a compulsory dismissal.

To begin with, an employee must first send a written notice of dismissal to the employer. The notice will contain details of the reasons for the termination and will be served by the employer or their representative. If the employer agrees to the terms, they can take the matter to the Employment Tribunal. At the tribunal, the employer and employee will have to negotiate any issues that could arise out of the original decision. If an appeal is filed by the employee, the tribunal will hear the appeal and can issue its decision. If the appeal is successful, the dismissal will be overturned and the employee can resume working with the employer.

constructive termination

Understanding the Concept of Constructive Dismissal

If an employee decides not to proceed with an appeal, the matter is taken to an employment court. In a case such as this, the court may order a retraining or development plan to ensure that the individual has adequate training so that he or she can continue working in the same capacity. If the court does not agree with the employer’s decision, then they will issue a written decision. The court decision can be appealed to the Employment Appeal Tribunal. If the appeal is approved, the Employment Appeal Tribunal will hear the case and issue its ruling.

If the Employment Appeal Tribunal agrees with the employer’s decision, the matter is over and the employee can return to work. If not, the case will be heard by the court and will go back to the tribunal for a ruling. In either case, the outcome of the case will be sent back to the employer for further consideration. There are two main considerations that have to be addressed when deciding whether or not to grant constructive dismissal. The first is whether or not the employer was within their rights to dismiss the employee for reasons deemed reasonable under the circumstances.

The second consideration is whether the claimant was able to show that the decision was unfair and therefore, a valid case for constructive dismissal has been made. If the initial decision is unsatisfactory, an appeal can be made to the Employment Tribunal. Before appealing, it is important to first seek legal advice to help determine if the claim is valid. The right circumstances can make a difference and a good lawyer can help you make the appeal as persuasive as possible.