Constructive dismissal is a tricky legal proposition to assert successfully. The
onus lies upon the individual asserting that he or she was constructively
dismissed, to establish, on a balance of probability, the constructive
dismissal, amounting to a breach of the employment contract.

Essentially, a constructive dismissal occurs when two elements are
established. First, that there was a change or changes to the existing terms and
conditions of the individual’s employment “contract”, which were not otherwise
accepted or condoned by the employee. Second, that the change or changes in the
existing terms and conditions of employment were of a fundamental nature.
Essentially, an employer cannot come along in the midst of the employment
relationship and unilaterally and fundamentally change the terms of the existing
deal. If it chooses to do so, the affected employee is at liberty to assert that
his or her employment has been “constructively terminated”. If proven, the
result is the same as if the employer had terminated the individual’s
employment, without cause, and such a finding gives rise to an award of
appropriate compensation, in lieu of notice.

The notion of constructive dismissal can apply in a variety of circumstances.
Historically, and perhaps more typically, constructive dismissal cases have
dealt with changes to an individual’s compensation, material alterations of
duties and responsibilities and geographic relocations, to name a few. However,
recently, the Ontario courts have arguably extended the concept to address a set
of circumstances where an individual’s privacy rights were impacted.

In Colwell v. Cornerstone Properties Inc., an employer installed a
surveillance camera, to address an undisputed theft problem, in the affected
employee’s office. The employee discovered the video camera recording images in
her office surreptitiously after about nine months and quit, alleging that her
employment had been constructively dismissed.

The employer had installed the camera to address an undisputed theft problem,
but did not suspect the plaintiff. The only reason it put forward for having
installed the camera in her office was that it thought the suspects would go to
the plaintiff’s office to “review the loot”, a suggestion the court said was
“preposterous.” The plaintiff appeared to have discovered the camera when she
visited a supervisor’s office and saw a live feed of her office, raising a
serious question about the use and security of the images being recorded.

The employee alleged a fundamental breach of an express or implied term of
her employment contract, a relationship, based upon the privacy violation. The
court accepted the proposition amounted to a constructive dismissal and found in
favour of the employee who, superficially and certainly from the employer’s
perspective, had quit. Damages were awarded.

This case presents an interesting extension of the concept of constructive
dismissal into new territory involving the intersection between technology and
employment rights.

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Norman Grosman tackles your employment law dilemmas regularly on Workopolis.
More information about him and his legal services can be found on his website grosman.com.