EMPLOYERS MUST CONSIDER INDIVIDUAL NEEDS TO AVOID CONSTRUCTIVE DISMISSAL SUIT
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.
Determining what changes to the employment relationship are significant and require advance notice can be difficult, especially when it comes to changes in the hours that employees work or the location of that work. The individual circumstances of each employee must be considered.
A woman we will call Sheila worked for 18 years in an insurance firm in Belleville. She had receptionist and clerical duties. When her brokerage was bought by a larger company, Sheila was told that somebody else had been hired to do her job at the Belleville office and that she would be moving to Colborne. Sheila lived in Belleville and this change would add significant commuting time to her day and dramatically alter her lifestyle. Although Sheila had no small children, she did have a life which for 18 years had been built around living 10 minutes from her office and spending a total of 20 minutes in the car every day rather than over an hour.
When Sheila did not show up for the first day of work in Colborne, she was terminated.
The employer, when Sheila had first voiced her objections with respect to the move, told her that she was not a good employee and required the close supervision that could be provided in Colborne. Suddenly, after 18 years, Sheila did not know what she was doing in her job.
When Sheila sued for wrongful dismissal, the employer took the position that Sheila had quit her employment and that she really didn’t want to work for them in the first place. They alleged that she had simply used this minor change in the terms of her employment as an opportunity to try to get a package.
Anyone who reads the judge’s decision in this case will come to the opinion that the judge was outraged by the employer’s behaviour. He thought that not only had they significantly changed a term of her employment that had been in place for 18 years, but that they had abused her in the process. Sheila was awarded 10 months pay in lieu of notice of the change in the terms of her employment. It was found that she was constructively dismissed.
If Sheila had lived halfway between Belleville and Colborne, she never could have won this case. The particular circumstances of where she lived and the fact that she had been working in the same place for 18 years were crucial to the decision in this case. If Sheila had worked for a company that had moved her around to equally distant places over the years or held a management position, the court would likely have held that commuting some distance was an implied term of her employment contract and she had to live with it.
More importantly, all the employer had to do to avoid the lawsuit was give Sheila advance notice of the move. If they had told Sheila that starting 10 months from the date she was notified, she would have to start reporting to work in Colborne, they would have provided her with reasonable notice of the change and there would have been nothing she could do about it. When the 10 months was up, she would have a choice of either reporting to Colborne or quitting. There would have been no constructive dismissal suit to be had.
As published in the Hamilton Spectator, July 27, 2004