Constructive dismissal: What happens if you're hired to do a job but that job changes or disappears?
You’re hired for a particular role, you get a job description and you start working. Then, a few months later, the company changes direction and your role changes. What do you do? How do you carve out a new role in the company or is it constructive dismissal?
Constructive dismissal is a common legal term, but what is constructive dismissal? It’s described as “situations where the employer has not directly fired the employee. Rather the employer has failed to comply with the contract of employment in a major respect, unilaterally changed the terms of employment or expressed a settled intention to do either, thus forcing the employee to quit.”
Anataly Dvorkin, a partner with D2Law LLP says, “this can range from a demotion, relocation, or even removal of support staff which can cause anxiety. Demotion from a prestigious job can cause a psychological loss.” Dvorkin works with employees who may have a case of constructive dismissal, but he cautions that it’s not that simple.
“You have to really look at your situation,” he says, explaining that the employer is entitled to some leeway in order to conduct its business and that fundamental changes can be made without giving rise to a claim for constructive dismissal if the employer provides sufficient notice . “Without enough notice, a unilateral fundamental change to an employee’s job duties is typically enough to breach the contract.”
Pursuing a constructive dismissal case can be “very dangerous for an employee,” says Dvorkin because it is a very fact-specific process. “Some people can be very trigger-happy. Common sense has to prevail.” He often talks to clients who are interested in pursuing a case against their employer to see if they understand what they’re undertaking and whether they have a good case.
So what can you do if your job description changes?
1. Do you want to remain with the company?
It’s a simple question with a not-so-simple answer. Do you want to remain with the company? Answer this before you proceed to the next step.
2. Is there a role for you?
Does the company’s new direction have a role for you? Can your skill set work within the company’s new plan? Make a list of your skills and see how they fit with the company’s goals.
3. Make plans
Sit down and lay out how your skills can help the company’s bottom line. This is the time to carve out the perfect job for you.
4. Talk to HR
HR is there for the company but they also prefer to use the skills that are already in house versus spending time and money looking for new talent. Set up a meeting with Human Resources to see if there is a role for you in the company. This role may not be exactly what you currently have but discuss all options including part time or freelancing.
5. Have a transition plan
If there is no role for you, work on a transition plan with HR and with a lawyer if necessary. This plan should include severance, qualifications for employment insurance, any entitlement to profit sharing, bonuses or RRSP contributions, intellectual property and career training.
If you do feel that you have a case for constructive dismissal, always consult a lawyer first.