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THE QUESTION
I was already thinking of quitting my job when my department was restructured. I’ve ended up in a different role that actually has fewer responsibilities but with the same pay as I had before. It’s an easier job. But I don’t like the company and I don’t want to stay, even in this new role. Could I claim constructive dismissal for moving to a new role with different responsibilities, even if it’s for an easier job and my pay hasn’t changed?
THE FIRST ANSWER
Cynthia Lazar, labour and employment lawyer and workplace investigator, Taylor McCaffrey LLP, Winnipeg
Employees can be dismissed in a number of ways. An actual dismissal is clear – your employer tells you your employment is severed, either with or without cause. “Constructive dismissal” is different; it is sometimes called a “forced quit.”
Constructive dismissal has two branches. In the first, your employer unilaterally changes a fundamental term or condition of your employment. In this case, it is unclear whether your employer unilaterally imposed the role change or if you agreed to it, or if the change was “fundamental” or “essential”. In any event, a change resulting in improved conditions is not a constructive dismissal.
The second branch of constructive dismissal is when your employer acts like it does not intend to be bound by the employment contract. This often presents as a requirement to work in intolerable circumstances. There is insufficient information to assess this, but consider: Will you report to someone who formerly reported to you? Will you lose prestige in the new role? Is the new role embarrassing given your qualifications? This requires individualized analysis and you should consult an employment lawyer if you wish to proceed.
Timing is important. If you have worked in the new role without objection, then you may have “condoned” or accepted the change. Courts have found condonation after only a couple of weeks in the new situation.
Constructive dismissal is very hard to prove. If you can tough it out, it is prudent to work until you have replacement employment and then resign.
If you are unionized, you should consult your union, as different considerations may apply.
THE SECOND ANSWER
Bridget Shebib, associate, Ascent Employment Law Corp., Vancouver
This question highlights the nuance involved in navigating constructive dismissal claims. The short answer is that this could amount to a constructive dismissal. Even changes that some may consider improvements, such as being moved into an “easier” role, can constitute constructive dismissal in certain circumstances.
This is because the central question is whether the employer has demonstrated that it no longer intends to be bound by the existing employment contract. This typically occurs when the employer breaches the employment contract by making a substantial, unilateral change to your employment. A demotion, which can mean a change in your duties and responsibilities (even if your salary remains the same and the new role is easier), can therefore amount to a constructive dismissal.
However, determining whether a constructive dismissal has occurred is nuanced. For example, employers sometimes include terms in their written employment contracts allowing unilateral changes. If such a term exists, the change may not breach the contract and therefore may not amount to a constructive dismissal. Further, if you agree to the change, you lose the ability to argue that the employer breached an express or implied term as required. You have to object to the change within a “reasonable time,” though what is reasonable depends on the circumstances.
Additionally, even if a constructive dismissal has occurred and you object to the change, you may still be required to remain temporarily in the new role to satisfy your “duty to mitigate” while you search for a new role. This duty requires employees to diligently search for comparable reemployment after termination in order to reduce potential losses. Whether the duty requires you to remain in the role will also depend on the circumstances.
Given the complexity of constructive dismissal claims, consulting an employment lawyer is the best way to understand your rights and explore your options.
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