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THE QUESTION
I was recently told that I’m being moved into a new job that has a new title with a completely different set of responsibilities. I see it as a lateral move with no pay increase and kind of a demotion.
I used to manage staff and now I won’t, and it’s in a new field that I’m not interested in and I don’t have experience in so would be starting from the bottom and having to work my way back up. It requires more travel and inconsistent hours.
My impression is that accepting this job is my only option, otherwise I would have to quit. Can I decline and be owed severance instead? I just want to know for sure my best- and worst-case scenarios so I don’t get taken advantage of.
THE FIRST ANSWER
Rahul Soni, employment lawyer, Soni Law Firm, Toronto
Your employer’s actions likely amount to a constructive dismissal and entitle you to termination pay.
While your employer may be able to make minor adjustments to your working relationship, it cannot simply change core terms of your job. You had a deal with your employer: you were going to be paid to carry out previously agreed upon job duties in a certain fashion and during certain working hours.
Now, your employer is trying to change material terms of your working relationship, including removing your management responsibilities, imposing travel requirements where there were none before and altering your working hours. On their own, each of these changes may not have been enough to trigger a constructive dismissal; however, your original position appears to have been fundamentally altered when we look at all these new changes collectively.
You can respond to your employer in two ways: accept those changes or argue that you have been constructively dismissed from your role. Keep in mind, staying silent or continuing to work under the new conditions can be considered as implicitly accepting the employer’s proposed changes – this is a concept known as acquiescence. So, you need to act promptly and explicitly inform your employer if you are declining the impending material changes to your job. Document all communications about these changes in writing.
If you reject your employer’s attempts to change your job, your best-case scenario could involve receiving termination pay for a constructive dismissal. Alternatively, it is possible that your employer may reverse its decision regarding your role to avoid losing you as an employee and paying potentially significant notice pay.
However, constructive dismissal cases are inherently risky. Each case turns on its own distinct set of facts. So, the worst-case scenario would be that you reject the employer’s proposed changes and a court finds that those changes were not drastic enough to meet the threshold of a constructive dismissal, leaving you with no job or termination pay. Given the stakes involved, you should consult with an employment lawyer immediately to better understand the best way to address your situation.
THE SECOND ANSWER
Muneeza Sheikh, founding partner, Muneeza Sheikh Employment and Human Rights, Toronto
It sounds like a new job. When an employer changes the features of your job to such a significant degree that it no longer resembles the job that you are qualified and were hired to do, it might be a constructive dismissal. In short, by offering this new job, the employer is repudiating the fundamental aspects of your original employment with them.
You should get a lawyer, who will make a case for severance for you, assuming your objective is to leave with a severance package. This is all operating under the assumption that you no longer want to be with the company. The other option (to the extent that you are interested in staying with the company) is to have your lawyer write to the company and put them on notice of the inherent unfairness of the offering of the new role. This might result in you being placed back into your old role.
However, in my experience, employers almost always refuse to make adjustments that fly in the face of their operational needs. You should not just “ask” for severance; it is about retaining a lawyer who will make an appropriate case for why you are owed severance.
The worst thing you can do is resign in the face of this new role, and walk away from a severance package that you are likely owed. The removal of your original responsibilities, your reports and the lack of change to your pay all appear to be a constructive dismissal.
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