Wednesday, January 4, 2012

Company not advised of employee's concerns; OLRB concludes no constructive dismissal

I very frequently get calls from people who think they see the 'writing on the wall', so to speak, worried that they are about to get fired.  There are various reasons that these concerns arise, ranging from disciplinary measures to reorganization of job functions or reassignment of duties.  Regardless of the reason, it is very stressful on employees to go into work every day feeling like, to borrow a comparison from the late Justice Echlin, the sword of Damocles is hanging over their heads, and there is often a real temptation to pre-empt the termination by quitting.

I generally advise against that.  If the core of an employee's concern is that they are worried that they will be fired, then I often say "Let them fire you, then."  Don't give them a reason, of course - you don't want to be dismissed for just cause - but the truth is that it usually isn't all that hard to not give them just cause.

If you're fired for just cause, the employer has to prove that they had just cause, and this is a high threshold.  If you're fired without cause, then the only question is how much money you're entitled to.  If you quit, however, the onus is upon you to establish that you were constructively dismissed, and this often puts an employee into a weaker bargaining position.

The recent OLRB case of Webster v. Securitas Canada Limited is a cautionary tale about quitting in advance of an expected termination, and may be a significant comfort to employers concerned about an employee quitting out of the blue and then claiming constructive dismissal.

Ms. Webster was a non-union office worker with the employer for several years.  She quit her job in July 2010, and brought a proceeding at the OLRB seeking statutory termination pay on the basis that of a claimed constructive dismissal.  The OLRB rejected the claim.

There were four alleged bases for the claim:

(1)  Change in Compensation

This strikes me as something that was likely thrown in to try to bolster the claim on other grounds.  She was removed from the bonus plan at the start of 2010, but was given a raise to make up for it reflecting the average bonus for the previous 3 years, and she signed off on the change.  The OLRB found that this change was not significant enough to constitute a constructive dismissal, and in any event she did not resign in response to this change, particular given her acceptance of it at the time, and even if she had it was not within a reasonable time.

Personally, I question the OLRB's way of reaching this conclusion.  It has broken down the bases of alleged constructive dismissal into discrete areas, which raises concerns for me.  Bear in mind that the statutory test for termination pay on constructive dismissal is threefold:  The employee must have been constructively dismissed; the employee must have resigned in response to the constructive dismissal; the resignation must be within a reasonable time.

The trouble with using discrete analyses for separate changes to an employment relationship is that it can ignore the cumulative effect of the changes.  There is no reason why a series of changes over a modest period of time could not, taken together, constitute a constructive dismissal even where a single change could not.  If I resign because of the constructive dismissal generated by a series of events, one cannot look to the first event in the series and say "He didn't quit because of that", nor can one reasonably say that the clock on the "reasonable time" starts at the time of the first event.

The Board member is aware of this argument, and does address it towards the end of the decision, acknowledging that it must be determined whether or not the changes to the employment relationship cumulatively constitute a constructive dismissal.  My concern is that, for all of the detailed reasons which go into the Board's rejection of each of the four grounds individually, the cumulative analysis is quite cursory.  I would argue not only that the cumulative analysis is more important, but that the individual analysis is actually quite unimportant, bordering on irrelevant.

However, this ground may have had another fatal flaw.  That she signed off on the change should have only one, if any, effect on the test:  If her agreement was legally binding (i.e. amended the contract at law) then the change was not unilateral by the employer, and therefore cannot form a constructive dismissal.

(2)  Change in Reporting Structure

Prior to her resignation, her direct supervisor changed.  She had been reporting to the IT manager and the Human Resources manager; the new supervisor was a Human Resources professional who was not a manager.  She didn't have a problem with the new supervisor, but alleged that it reduced her status.

The OLRB finds that there are a couple of problems with this argument:  Firstly, "this concern was never raised with the employer prior to the resignation", and secondly she appeared not to have been aware that her new supervisor was not a manager until after starting the complaint process.

(3)  Change in Duties

The IT manager, noted above, was terminated when the IT function was moved to the United States in early 2010.  Thus, her IT-related duties disappeared.

However, the work she continued to do was similar in kind to the duties she did beforehand.

(4)  Lack of Work

This seems likely to be where the crux of the issue was.  After her IT-related duties were eliminated, she no longer had enough work to keep her busy.  She felt "unsatisfied, unneeded, and unwanted".  In essence, she thought it was just a matter of time before she was laid off because she was no longer needed there.

The Board rejects this argument, too, finding that the company was in transition, and she was obligated to "give the employer time to work through the transition, or if she was very concerned, raise the concerns with the employer."

My Thoughts

I touched on the issue of the cumulative effect above, and I think the Board's analysis somewhat ignores the totality of the narrative:  First they take away my bonus, then they remove my IT functions and lay off my manager, and relieve my other manager of the burden of me reporting to her, then they don't give me any new work.  They took away everything about my job except my salary, and were essentially just paying me to twiddle my thumbs.

This issue doesn't frequently arise in the jurisprudence, because employers don't generally like to pay employees to do nothing, but there's a pretty decent argument to be made that an employee does have a contractual right to their duties - not just the salary, but also to the actual job, for two reasons.  Firstly, experience is important.  Many jobs are stepping stones on a career path, that you take for the experience of the position and not just for the salary.  Secondly, it has long been accepted in the jurisprudence that a person's job is integral to their sense of self-worth.  That's a reflection of the duties, about the satisfaction of doing one's job, and not just about taking home the pay cheque at the end of the day.

I'm not saying I think the Board's decision is wrong.  Assuming that she did have an obligation to put the employer on notice of her concerns, the Board is almost certainly right.

I'm not sure where that obligation originates, though.  It seems a reasonable expectation of the employer, of course, to be able to correct this sort of thing before liabilities are incurred, and yet at the same time I have concerns about the consequences of such a doctrine.  Constructive dismissal is often about the straw that broke the camel's back.  I have concerns about this, that, and the other thing.  I don't want to make a stink, because I don't want to risk conflict with my manager.  But these push me to the breaking point.  Then the employer crosses the line one last time, so I quit.

Yes, it's a healthier working environment when an employee is comfortable approaching his or her manager with concerns, and where the manager can process and address concerns.  But in reality, many (most?) workplaces don't work that way.  The employees do what they're told, the managers expect nothing less, and both employer and employee often expects that if an employee doesn't like how the employer does business, the employee can leave.  That is what constructive dismissal is.  It isn't about the employer refusing to reasonably address employee concerns, it's about the employer unilaterally changing the relationship in a fundamental way.  To argue that the employee is obligated to go back to the employer and say "Change it back or I'm out" before a constructive dismissal can be said to have occurred in effect gives the employers an unlimited right to make changes to the employment relationship and an obligation only to negotiate about these changes after the fact.  That's not what the law does.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

1 comment:

  1. I will confess that I am something of a Dilbert fan, and today's comic quite concisely explains my concerns about how the 'cumulative effect' is dealt with in this decision: