Constructive Dismissal - Employers must give notice of big changes
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.
Annette Corey began working for Dell Pharmacy at one of its stores in 1984 while still in high school. By 2001 when she took a maternity leave, she had been promoted to the position of Front End Manager. She worked at least 40 hours a week and had benefits.
Before her maternity leave ended in 2002, she asked her employer for a part time position as a bookkeeper because bookkeepers don’t work Saturdays and Sundays. She explained that she wanted part time work because of her child’s needs. Dell agreed. Annette gave up her benefits, over half her pay along with her management position.. She was happy as she was only working three days a week from 9 until noon.
Annette was good at what she did and a few months later, they asked her to take on a second store. She agreed and this added 4 to 6 hours to her work schedule. She still never started before 9.
Another few months went by and Dell asked Annette to become its bookkeeper at one of its largest stores in Hamilton. She would have to work five days a week for just under 20 hours.
Before accepting the position, Annette double-checked to make sure that she would not be expected to start before 9. She did not want to have to wake her son too early in the morning to get to work and disturb his sleeping patterns. About five weeks after she started with the new arrangement, she went to the manager of the new store and asked if she could work four days a week instead of five. She felt that the new arrangement was taking too much time away from her son. The manager agreed. Within a few months, she was working only at the new store on Mondays from 9 until 2 and on Tuesdays, Wednesdays and Fridays from 9 until 3. In June of 2003, she was asked to take on new duties at the store and she agreed on the condition that her hours of work remain unchanged.
On November 21, 2003 she was told by her manager that as of two weeks later she would be required to work five days a week, starting at 8 and working until 2 three days of the week and until 1 on the other two days. Suddenly her hours were shooting up from less than 20 to 28.
Annette told her manager that she could not start at 8 because of her baby’s sleep schedule. He did not wake up until 7:30 and it was important to her that it not be changed and she did not want to be away from him five days a week. She asked that the changes be put in writing. Within a few days she was given a letter indicating that the change in hours would not take place until six weeks later but she would still be working 28 hours a week and starting at 8. Annette proposed that she work from 9 to 3, four days a week for a total of 24 hours. The employer said no.
Annette’s last day of work was December 31, 2003. I sent a letter to the employer soon thereafter demanding pay in lieu of notice. I took the position that Annette had been constructively dismissed as a result of a unilateral change to important terms of her employment without appropriate notice. Dell disagreed and Annette sued for wrongful dismissal.
When this case went to trial in April, the employer’s position was that changes to Annette’s hours were necessitated by the needs of the business and Annette was obliged to accommodate those needs. In Dell’s view, Annette resigned from her employment.
Justice Cavarzan noted that Dell knew Annette had given up management status, full time work, half her pay and her benefits to get part time work. Dell management admitted that they knew
Annette had given up those things to accommodate her child care obligations. Justice Cavarzan noted that the changes that Dell attempted to force upon Annette were three-fold; an increase of hours from just less than 20 to 28, a move from four days a week to five and a start time an hour earlier every day.
Justice Cavarzan stated, “The evidence in this case establishes that a paramount consideration for the plaintiff was ensuring that she could give priority to her childcare obligations by negotiating an appropriate starting time and by limiting her hours of work. The employer understood this felt need of the plaintiff when it considered, on separate occasions, whether it could live with the 9 a.m. starting time and the four-day work week. After due deliberation, it agreed.”
He found that these were essential terms of Annette’s employment contract. He also found that the employer tried to change these terms unilaterally without appropriate advance notice. That is a constructive dismissal.
An employer can make any changes it wants to important terms of employment but must give appropriate advance notice given the age, seniority and level of responsibility of the employee involved. Small changes require no notice. Justice Cavarzan decided that given Annette’s 20 years of service, she should have been given 15 months advance notice of the changes and he awarded her 15 months lost wages as well as a significant part of her legal expenses. Because Annette was only a part time worker at the end the award was less than $15,000. The truth is that if the employer had even offered $10,000 when it first got the demand letter, this case would have been over. Instead, Dell paid its lawyer, Annette’s lawyer (thank you) and Annette.
Dell felt that by giving Annette six weeks notice of the changes they were giving her enough time to make changes in her family’s life to accommodate their needs.
Employers should keep in mind that the question is not whether the employee has enough time to make changes to accommodate the employer’s needs but whether the employer has given sufficient notice of big changes.
As published in The Hamilton Spectator, August 19, 2006