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THE QUESTION
Last year I was offered a role change from HR manager to payroll manager. I didn’t feel I was given a choice but to change roles. My manager sent me a cut-and-paste job description with roles and responsibilities, which included many tasks I had no knowledge or experience of. Then, my year-end bonus was slashed by 60 per cent (the lowest bonus I’ve had from my 13 years with the company) because I didn’t meet the new requirements. This is despite the company having its best year ever. Can this be considered constructive dismissal? I’d also like to mention that I’m over 65 years of age.
THE FIRST ANSWER
Sarah Levine, lawyer, Taylor Janis LLP, Edmonton
This is certainly an unfortunate situation to find yourself in, and one that is unfortunately quite common where employees feel forced to accept significant job changes for fear of losing their employment. Particularly for employees who are older, or in and around retirement age like yourself, that can seem like an even greater risk because the chances of finding new comparable employment decrease.
Constructive dismissal is a situation where an employee is not actually terminated, but if established, they are considered terminated at law because the employer has made such substantial and unilateral changes to fundamental terms of your employment that it is as if your employment contract has been terminated. The legal recourse an employee would then have would be to claim wrongful dismissal and pursue damages in the form of severance, or pay in lieu of notice of termination, as if they had actually been terminated. Certainly, being forced into an entirely different position and experiencing a significant decrease in compensation with the slashing of your bonus are fundamental terms of your employment that were unilaterally changed by the employer, which are grounds for constructive dismissal.
Critically, however, the courts are clear that a constructive dismissal claim must be made quickly after the fundamental changes are imposed upon you. There is no firm length of time, but generally, employees cannot wait longer than a few weeks, maybe a couple of months in some instances, to protest the changes. The courts have held that if an employee works for too long in the changed circumstances, they have acquiesced to or consented to the changes. If it has been about a year since these changes were made, it is likely too late to assert constructive dismissal.
THE SECOND ANSWER
Alison Longmore, partner, Jewitt McLuckie & Associates LLP, Ottawa
Constructive dismissal occurs when an employer makes a unilateral change to the essential terms of employment, such as job duties or salary, without the employee’s explicit or implied consent. In order to prove that you have been constructively dismissed, you would have to prove that the change was a breach of your employment contract and that the change was an essential term of your contract. If your job duties changed completely from HR manager to payroll manager, that could give rise to a constructive dismissal claim. However, if new payroll duties were simply added to your HR manager duties, it may depend on whether your old job description or employment contract contemplated those sorts of changes. Similarly, whether the reduction in your bonus gives rise to a claim for constructive dismissal will likely depend on the reason for the reduction and whether it was permitted by your employment contract or not.
If you have continued working for a year after your job was changed from HR manager to payroll manager, your employer may be able to defend any claim that you were constructively dismissed on the basis that you have acquiesced to the change. But, because this area of the law is complex, it is best to seek legal advice. If you believe that your employer singled you out based on your age, you may be able to file a human rights complaint.
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Andrea Yu