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What to do when your position is eliminated

Date: Tuesday, January 3, 2012
Author: Daniel A. Lublin
Publication: Globe and Mail

Question: My company went through a reorganization last year. Through the process my job was reclassified from a Manager to a coordinator and the pay was reduced. It has been 1 year and I do not have a revised job description. As far as work load there was a minor switch but overall the responsibilities are the same. Can they do this?

Answer: Your employer is prohibited from adversely changing your job in any significant way.If your employer does so, this gives you the right to a legal claim referred to as a constructive dismissal. In essence, it permits you to treat the employment relationship as over, leave work, and then sue for severance as if you were fired. Here are some of my favourite examples:

Changed hours of work – If a specific shift or certain hours have become customary, your employer cannot make any real change without your consent. In a recent Ontario case, a judge determined that an employee was constructively dismissed because, after nine years of working only rotating shifts, his company suddenly forced him to work nights.

Reduction in compensation – A pay cut, sometimes even a minor one, may amount to a constructive dismissal. In one of my own files, the employee was asked to work an extra three hours each week, but without any additional pay. Over the course of one year, this was an extra 156 hours. Although his salary was not technically “reduced,” his hourly compensation clearly declined and his employer received more value for the same cost. If a judge agrees that this was a material change to his compensation, his ex-employer will have to pay damages. There are many other forms of pay cuts that are not allowed. Court cases show that any reduction of over 10% of your total compensation generally cannot be imposed.  Anything less may have to be accepted in some circumstances.

Changed responsibilities – Unless your employment contract states otherwise, you are hired for a defined job and this cannot be changed without your consent. Since employers cannot “force” new duties on you, usually these occur over time and it is often by design. However, whether a job gradually changes or is changed overnight will seldom matter. The courts will ask whether the job you are performing is what you were hired to do.

Changed location – These “commuter” cases are some of my favourites. They arise when you are asked to transfer to a different place of work. It is usually not a problem unless longer commute times are involved. Only then will you likely complain. If that commute is materially longer, you cannot be compelled to go. In an interesting twist, I had a case last year where an employee working remotely for years was suddenly asked to return to work. I argued that this was a pretext to fire him, because the employer had no real intention of having him do his job at the workplace – or even the space for him to work. I called its bluff, and it settled the case, generously. It knew it could not force the employee to return after letting him work from home for so long.

However, as is often the case in workplace law, there is an exception. An employer is permitted to make a substantial job change if your employment contract permits it or if you are given reasonable advance notice of the change. Even if either of these exceptions do not apply, when you do not protest the change, you are usually deemed to accept it. This is what appears to have happened to you here, and it is a classic example of the “use it or lose it” principle. By your own inactivity in not protesting the changes to your salary and job, you may have now lost the chance to complain.

Sep 30, 2012