EMPLOYERS MUST BE CLEAR ABOUT TEMPORARY POSITIONS
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.
Rather than allowing Nadia to leave, the manager was fired. The Board of Directors of the Chamber of Commerce then asked Nadia to take on the responsibilities of the manager. As a result of the settlement they paid to the former manager, they could not hire somebody to replace Nadia in her promotions position, so Nadia fulfilled both roles. She received a small raise when she was promoted but was still being paid $20,000 a year less than the former manager.
Over the next 6 months, Nadia worked hard doing both jobs. It was announced in the local paper that she was taking over the manager’s role and she obtained business cards describing herself as manager.
She received positive feedback from the Board of Directors about the effort she was making. A lot of her time was spent organizing an annual dinner which was a big event for the Chamber of Commerce. It went well, but very soon after it took place the Board of Directors dropped a bombshell on her. They told Nadia that they were now going to advertise for a full time replacement for the general manager and she was welcome to apply.
Nadia was floored. No one had mentioned to her that her promotion was temporary and she had worked like a dog for 6 months fulfilling the responsibilities of two positions.
When Nadia sent a letter to the Board expressing her dismay at this treatment, she was told that if she wasn=t successful in her application for the manager’s job she could have the position as office secretary at a lower rate of pay than she was presently receiving.
Despite her disgust with how she had been treated, Nadia applied for the job. The interview went well but Nadia was not the successful applicant. Rather than accept the demotion, she left the employ of the Chamber of Commerce and sued for wrongful dismissal. At the time she left she had been there just over a year and was 61 years of age.
Although the Board tried to argue that Nadia was aware that her promotion was temporary, they had no documentary evidence whatsoever to support that proposition. The Board said that Nadia got business cards made up describing herself as manager without their permission but the judge did not buy it.
The judge found that the Board had misled Nadia as to the nature of her promotion and taken advantage of her commitment to the job, filling the gap until they had time to start to look for a new manager. Nadia’s demotion was in fact a constructive dismissal...she had been terminated without anyone saying, “You are fired”.
Reasonable notice is usually based on an employee=s age, level of responsibility and seniority. Given that Nadia was 61 years old, the judge assumed that it would be harder for her to find new employment even though she was there only a year, in all the circumstances he decided that she was entitled, in normal circumstances, to 3 months’ pay in lieu of notice.
These, however, were not normal circumstances. The judge took note of the fact that the employer had deceived Nadia about the temporary nature of her promotion, paid her $20,000 less than the previous manager to fill two positions and taken advantage of Nadia throughout the process. The judge found that this constituted a failure to treat Nadia in good faith and increased Nadia’s reasonable notice by one month as a result of the employer’s breach of this obligation. Nadia got 4 months’ pay all together.
One little letter. That’s all it would have taken. One little letter saying “Dear Nadia, We are promoting you to an interim position of Manager until we make a final decision on how to fill the position.” If the employer had written this one little letter, Nadia would have had no case, the employer would not have spent thousands of dollars in legal representation and had to pay Nadia a severance package. What a difference a few words can make.
As published in the Hamilton Spectator, July 14, 2003