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Debra
Debra, Lawyer
Category: Canada Law
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Experience:  Lawyer
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During a restructuring a manager has his job changed, his

Customer Question

During a restructuring a manager has his job changed, his travel requirement goes from 20-25% to 40%+. The employee complains due to family issues. The company says take the job or face termination without "constructive dismissal". The employee is familiar with the business and writes a detailed email that describes why the travel will be not 40% but 50-75%, and he is force to turn down the position. Upper management and HR do not respond to the email.
The same position is posted, an applicant is selected... but a verbal agreement is made that the travel will only be 25%.
The original employee is facing termination without "constructive dismissal" is this correct ?
Submitted: 5 months ago.
Category: Canada Law
Expert:  Debra replied 5 months ago.

Hello! My name is***** you for your question. I'm reviewing it now, and will post back again shortly.

Expert:  Debra replied 5 months ago.

No that is not correct.

The situation is 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 the employee would receive had they been dismissed without cause. If that had been the case they 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 the employee worked for the employer, their age, their position, the likelihood of finding new employment etc.

At the high end, if they 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 they were not in a managerial position the Court would order somewhat less.

Does that help as a starting point?

Please feel free to post back with any follow-up questions you may have. If you don't have any then I hope I have earned a 5 star rating but if you don't feel that I have please don't hesitate to reply back and let me know what more I can do to assist you. Finally, please know that even after you rate me I will be here for you and you can ask follow-up questions if you think of them later on at no further charge of course.

Expert:  Debra replied 5 months ago.

Is there anything more I can help you with at this point in time?

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