Constructive dismissal has been described by the Supreme Court of Canada as: ...where an employer unilaterally makes a fundamental or substantial change to an employee's contract of employment...a change that violates the contract's terms... the employer is committing a fundamental breach of the contract that results in its termination and entitles the employee to consider himself or herself constructively dismissed. The employee can then claim damages from the employer in lieu of notice.
Consideration basically means that if the employer asks the employee to give up something (eg. a pension plan or to accept lower wages), it must also give up something - though not necessarily of equal value - in return. That could be a guarantee of a further period of employment, if the employment would clearly have been otherwise terminated. The Ontario Court of Appeal in Wolda wrote: "the employer cannot, out of the blue, simply present the employee with an amendment to the employment contract and say, 'sign or you'll be fired' and expect a binding contractual amendment to result without at least an implicit promise of reasonable forbearance for some period of time thereafter."
The new agreement with each worker could be put under seal. The employer's lawyer should be consulted in order to ensure that the new reductions in the workforce will be enforceable. This method is preferable because it engages both parties, builds commitment in the new arrangement and reduces any chance of a legal dispute. Working with the employees affected to come up with an effective solution going forward is sound employment relations. Those employees who do not "play ball" with this method, can attempt to negotiate terms of voluntary withdrawal.