Each month, our Advocacy Committee answers your questions about the AD 10 polices (aka, your terms and conditions of employment.)
Here is the Advocacy Committee Chair, Wanda Dekleva, to answer some of your questions about workplace issues.
My department eliminated my position and offered me a role which is one pay grade lower than my previous job. My salary won’t change, but my duties and work schedule will. Is this constructive dismissal?
Your experience falls under the AD 10.18 policy: Elimination of Positions and Employment Continuity. There are clear procedures that SFU needs to follow, and they can offer you a position with a lower salary grade.
If you feel this action was because of an issue in your department or a toxic work environment, you can pursue resolutions to these situations. Call APSA to find out more about your choices.
Because you do have remedies under the AD 10 policies and you are still employed, this is not constructive dismissal.
What is constructive dismissal?
Constructive dismissal is a term for situations where the employer changes a fundamental aspect of your terms and conditions of employment, without providing a reasonable business justification. The employee did not agree to these changes in advance, did not accept them once the changes were made and felt forced to resign.
Changes can include:
- a significant decrease in pay
- requiring a move to another city
- a significant demotion in title, responsibilities and reporting relationships
Former employees can also claim constructive dismissal if they can prove that their employer created a toxic work environment. The former employee has the burden to prove the case for constructive dismissal.
I feel that there has been a fundamental change in my employment contract. What are my options?
If you are facing a change or breach of your employment contract, you can:
1. Agree to the changes. If you go along with these changes, you cannot then argue constructive dismissal at a later date.
2. Accept the breach and resign. You can then claim constructive dismissal. Keep in mind, as a former employee, you are responsible for proving the breach of contract. You also have lost your job and likely your livelihood.
3. Protest the breach of contract, do not quit and sue for breach of contract. This option allows you to continue your employment, and shifts responsibility to the employer to terminate your job.
Because you do have remedies under the AD 10 policies, it is unlikely that your case will be considered constructive dismissal.
If you feel that there is a fundamental change in your employment contract, and are thinking of resigning, please contact APSA to discuss your options and possible improvements to your work situation.
Further Reading:
https://www.kcyatlaw.ca/constructive-dismissal/
https://en.wikipedia.org/wiki/Constructive_dismissal
https://yeageremploymentlaw.com/dismissal-types/constructive-dismissal