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Legal Ease
Legal Ease, Lawyer
Category: Canada Law
Satisfied Customers: 85413
Experience:  Lawyer
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Hi, I have been in the company for 11 years now. Just recently,

Resolved Question:

Hi, I have been in the company for 11 years now. Just recently, I received a notice of status change on my job position because the company is experiencing fluctuation in the amount of works that we are receiving and need to reorganize. I told my employer that I decided not to accept the offer but to get the company’s package for dismissal since my position has been terminated. However I was informed that I am not legible to get the compensation package because the company is able to provide alternative substantial equal job for me and if I will not sign the paper then I should tender my resignation instead.

From To
Management Position-Supervisor Rank & File –Senior Lead
Salaried Hourly
Regular Time Schedule Weekends Off May change to shift rotation and weekdays off

The present wage equivalent to hourly is the same but will be frozen until such time that the new position will reach or equal to the previous position. The overall job description is generally the same except for some management tasks (payroll, dealing with staffs’ concern, etc), the department is also the same.

Do you think that the new job status is as equal to my previous job status?
Submitted: 10 months ago.
Category: Canada Law
Expert:  Legal Ease replied 10 months ago.
Thank you for your question.

Before I begin I want to explain a bit about how the site works.

It may be that I will find that I need to gather further information from you. As well, it's quite possible that you may feel the need to ask me additional questions for further clarification.Please do not worry that you will be charged additionally if I ask you questions or if you need to ask me questions. That is not at all how the site works.

As well, please understand that as a careful lawyer I will always give you an honest answer even if the answer is sometimes not what you were hoping for.

Finally, as we go through the process please do not feel rushed if I ask you a question. You are always free to take your time to gather more information before you post back. As well, please understand that even after you rate me the post will not lock and you could always come back for further clarification if you think of something a bit later on down the road.

Thank you for requesting me.

The situation does sound like this may be a case of constructive dismissal.

When an employer does something that fundamentally changes the nature of the employment so that it drives the employee to quit, this may be a case of constructive dismissal. This is usually the case when the employer reduces wages, cuts hours etc. It is also the case where the employer's conduct makes it intolerable for the employee to continue working.

If an employee does quit under these circumstances then the law is that constructive dismissal is wrongful dismissal and the employer will be liable for damages.

Generally the damages would be equal to what you would receive had you been dismissed without cause. If that had been the case you would have been entitled to receive "reasonable" notice or pay in lieu of notice.

Generally, in determining what is reasonable notice Courts look at several factors including the length of time you worked for the employer, your age, your position, the likelihood of finding new employment etc.

At the high end, if you were in a managerial position, the Court would likely order one month's notice or pay in lieu of notice for each year of employment. If you were not in a managerial position the Court would order somewhat less.

Your next step should be to consult with a lawyer face to face.

You can contact the BC Branch of the Canadian Bar Association and use their Lawyer Referral Service. You will be given the name of a lawyer and can consult with the lawyer and the first half hour will be $25.

The number is:

604.687.3221 or 1.800.663.1919.

Let me know if you need any further clarification.
Customer: replied 10 months ago.

Hi, thank you very much for your response.


 


Just one clarification, is the same wage (though change from salary to hourly) a significant factor that my employer believed that they gave me a substantial equal job. Because I thought that a change in position status is already a kind of demotion and have a basis to believe that the new job offer is not equal.


 

Customer: replied 10 months ago.
Relist: Other.
Just to clarify on the factors that my employer believed that I was given equal job offer and that is the same wage.
Expert:  Legal Ease replied 10 months ago.
If it's a demotion then it is constructive dismissal.

It doesn't matter what the employer says.
Customer: replied 10 months ago.

Thank you for your reply.


 


I have another question. What is the interpretation of BC Employment Standards Act - Part 8 (termination of employment) - 65 (exceptions) section 1f - "who has been offered and has refused reasonable alternative employment by the Employer"


 


The status change was offered September 19th but it was effective September 15th. For the new position I think it is a demotion in terms of position, future increase or incentives, authority, & schedule.

Expert:  Legal Ease replied 10 months ago.
It is not reasonable if it's a demotion.

And it clearly sounds like a demotion to me.
Legal Ease, Lawyer
Category: Canada Law
Satisfied Customers: 85413
Experience: Lawyer
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