IS IT A CONSTRUCTIVE 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?
 
ANSWER: No, you have not quit.  You have quite clearly been terminated.  A constructive dismissal takes place when the terms of your employment are changed so drastically that you have the right to take the position that you have been terminated.
 
Putting you on a probationary period after 3 years of service alone would be a foundation for a  good argument that a constructive dismissal has occurred .  When the lowering of your benefits, forced work from home and  vagueness about your new responsibilities are added, this is probably a hands down constructive dismissal. 
 
Although I would strongly recommend you speak to legal counsel before you take any action, you likely have the option of either taking the new job and seeing what happens or taking the position that you have been terminated and suing for wrongful dismissal.  That is the good news.
 
The bad news is that after only 3 years of service you will be entitled, at most, to 3 or 4 months= lost pay.  If you are confident that you can find new employment then it is better to leave with something rather than nothing.  If your prospects for re-employment are not great, you have to consider how the mortgage is going to be paid after the 3 or 4 months severance is used up.  Also, keep in mind that depending on how stubborn your employer is, it could take up to 18 months to get that 3 or 4 months= pay out of them.
 
As published in the Hamilton Spectator, March 18, 2002
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com