There has been lots of press coverage respecting a number of class actions by employees who claim that they have been improperly denied overtime pay.  The reality is that actions by individual employees are unlikely to be commenced as the legal fees relative to the potential recovery make such claims prohibitively expensive except in cases in which the overtime claim is part of a larger wrongful dismissal action.  Additionally, it would generally not be a great career move for an employee to advance such a claim against his or her current employer.  A class action has the potential to address each of those disincentives for employees.

In the fast-paced world of business, companies often have to make changes to the way in which they operate. Sometimes these changes will result in changes to the terms and conditions of employment for certain employees. In these circumstances, employers should be aware that as a general principle, under Canada’s common laws, an employee is considered to have been constructively dismissed by his/her employer if the employer unilaterally changes a fundamental term or condition of employment. To determine whether a change constitutes a constructive dismissal, an assessment will need to be made on a case by case basis, taking into account factors such as the magnitude of change, whether the change affects all employees and whether the change is being made in conjunction with other concurrent changes. Assuming that a proposed change is being made to a fundamental term or condition of employment, the employer must proceed very cautiously. Generally, taking the following steps will serve to mitigate against this risk: 1. Provide the employee with reasonable advance notice of the fundamental change. Be sure to make it clear that if the employee does not accept the change, his/her employment will be terminated at the end of the reasonable advance notice; and/or 2. Provide the employee with some form of consideration to accept the change. For example, provide the employee with a signing bonus in exchange for his/her acceptance of the fundamental change. Certainly employers need to be able to make changes in the workplace, but it is important to recognize that introducing such changes may result in significant liability. Taking the above steps will serve to reduce the risk of a claim for constructive dismissal.