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Debra
Debra, Lawyer
Category: Canada Law
Satisfied Customers: 98990
Experience:  Lawyer
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I am in Ontario Canada. Working years on a 'draw against

Customer Question

I am in Ontario Canada. Working for 2 years on a 'draw against commission' with draw being 45K per year. Initial contract said nothing about draw ending or owing funds back. Company is wanting to take me off draw now and go on straight commission. The new contract says they are willing to 'forgive' the deficit (of 50K which is more than the draw?!). Not sure I want to sign this, but I don't want to be on the hook to pay them back this money. I want to quit. Can I do this without a penalty? I have been on draws against commission before and never have had to 'pay it back' unless something was clearly written in the contract.
Had I known they would take me off the 'draw' I wouldn't have accepted the job in the first place.
Submitted: 1 year ago.
Category: Canada Law
Expert:  Debra replied 1 year ago.

Do you know what constructive dismissal is?

If you were to stay and continue in this way would you be receiving less money?

Customer: replied 1 year ago.
I am aware of constructive dismissal however in a sales environment I thought the rules were different. And no I wouldn't make the same amount of money if I were to stay. My concern is that they will ask me to 'pay it back'.
Expert:  Debra replied 1 year ago.

The rules are not different so long as you are an employee. And I understand that you are worried about having to pay back that money but, you don't owe the money unless you had an agreement that you would owe that money. They cannot simply impose rules on you that they would have liked to have had in an agreement before. Perhaps this was even an oversight on their part but if you never agreed with them that you would pay them back you don't owe them the money.

I think I should explain briefly what constructive dismissal is just in case you are not so sure as 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.

If you are considering this option it is crucial that you first consult with an employment lawyer so that you can get a legal opinion from an expert both about whether the facts amount to constructive dismissal and, as well, about what damages you may be entitled to.

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.

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