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THE QUESTION
I have been in the same role for two years. Last week, my manager told me they were changing my job role and reducing my salary because I’d have fewer responsibilities. However, the new tasks are actually more challenging and difficult. Can I decline the job change and qualify for employment insurance? I already don’t like working for this company and would rather just get EI and find a new job. What are my options here?
THE FIRST ANSWER
Lior Samfiru, employment lawyer and co-founding partner, Samfiru Tumarkin LLP, Toronto
What your employer is doing isn’t just questionable – it’s likely illegal. You can’t be expected to take on a role that is vastly different from the one you signed up for. That’s not how employment law works in Canada.
A company can’t unilaterally make significant changes to the terms of your job, especially your compensation, without your agreement. While the employer does have some discretion to make minor changes, combining a salary decrease with added responsibilities is a major change and is likely one that falls outside your employer’s ability to legally implement. If they do, it can result in a constructive dismissal. That gives you the right to treat your job as if you’ve been let go and pursue full severance. In some cases, that can be as much as 24 months’ pay.
One thing you should absolutely not do is quit without speaking to an employment lawyer first. If you just walk away, you could lose out on severance and EI. But if we can properly establish a constructive dismissal, not only can you leave with compensation, but you’ll likely qualify for EI as well.
It’s also important not to wait too long. If you continue working under the new terms without objection, the law may consider you to have accepted the changes. That could eliminate your ability to do something about it later. It gets worse. By accepting changes, you may be considered to have given your employer permission to make further changes to your job in the future.
You don’t have to accept unfair treatment just to collect a paycheque. You have rights. And in this situation, it sounds like you have some good options on the table.
THE SECOND ANSWER
Omar Abougoush, principal lawyer, Abougoush Law, Edmonton
I would first recommend that you approach your manager, decline the changes and demand that your old position be restored. If your employer refuses your demands, then the short answer is yes, you can absolutely quit your job and apply for EI.
The long answer is that you are likely owed more than just the EI benefits. You have found yourself in a situation where your employer is “constructively dismissing” you – the employer is forcing you out the door (and forcing you to quit) because they are electing to fundamentally change the job that you signed up for.
What the courts have recognized is that employment contracts work both ways: you signed up for a job with a certain salary, in a certain position, at a specific location. You upheld your end of the contract in good faith for two years. On the other hand, your employer is now breaching that same contract by changing your job tasks and reducing your salary, essentially leading to your constructive dismissal.
Being constructively dismissed is the same as being wrongfully dismissed in the eyes of the law, and you are likely owed severance for this unjust and frustrating experience. You have the right to apply for your EI benefits soon after you quit your job and I would recommend that you book a consultation with an employment lawyer thereafter.
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