Ann first started working for a small insurance agency in 1980. In 1983 she quit to raise a family but returned to her old employer in 1990 as the office manager. Although she had a set hourly rate for working 30 hours a week, she always received the same pay cheque whether she worked more or less than 30 hours, usually more. She was the office manager and a committed one. She always spent the time to make sure what needed to be done got done.
The vast majority of constructive dismissal cases involve a loss of pay or prestige. When big changes come without appropriate notice, the employee has the right to leave and sue for constructive dismissal. Constructive dismissal cases, can be about far more important things than pay and prestige.
QUESTION: For 8 years I have been paid a combination of salary plus commission. When the last fiscal year ended, my employer told me that in the future I would not be receiving commission but only straight salary. My salary was increased. A month later, the previous year’s results came in and I realized that I had had a stellar year. While I got paid my salary and commission for the last fiscal year, I realized that if my sales continued the way they were, I would have been far better off with the combination of salary and commission, even though my salary had been increased as a result of the recent change. Have I been constructively dismissed? Is there anything I can short of suing for wrongful dismissal to get this loss of money back?
A working career, like life, is full of change and transition. Nothing ever stays the same for long.
Not all changes to the terms of one’s employment are welcome. I am routinely asked the question, “In what circumstances can I reject the change imposed by my employer, walk out the door and sue for wrongful dismissal?”
A woman we will call Nadia got a job doing promotions with a Chamber of Commerce in British Columbia. A few months after she started the job, she met with the president of the Board and advised that she would have to leave the position because she could not work with the Chamber of Commerce’s manager. It was a small office of only 3 or 4 people.
A “constructive dismissal” is a termination where nobody every says “you are fired”. An employer does have the right to change minor aspects of the employment relationship without notice.
With the advent of free trade and the globalization of economies, the trend of transferring employees from country to country and even between continents is increasing. Many people are only too happy to be transferred anywhere warmer than here, but that is not always the case. The question often arises, do you have to go? If the company says you're moving to Ohio and you say no, have you failed to fulfill your obligation to take all reasonable steps to reduce your wage loss?
A man named Larry worked for a wine producer for ten years. Around Larry's seventh year of employment, he was promoted to Regional Sales Manager with approximately three sales representatives reporting to him.
A constructive dismissal is a termination where nobody says you are fired. If an employer significantly changes the terms of employment without reasonable advanced notice and without the employee’s consent, the employee may take the position that they have in fact been terminated, leave and sue for wrongful dismissal.
QUESTION: After rendering 3 years of loyal service to my employer as a Sales Representative, I have learned that our sales department is being sold off to a new company. I have received a letter of offer from the new employer telling me that even though I have worked in this job for 3 years, I will be on a 90 day probationary period when I start the new job next month. My benefits are going to be lowered and I have to work out of my home. They have not indicated whether they are willing to recognize our seniority, what territory I am going to be assigned or what marketing methods they are going to use. I have been told that there is no negotiations possible with respect to the offer letter. I have not been offered a severance package. If I do not accept this new job, have I quit?