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April 14, 2015 by FH&P Lawyers
The peaks and valleys of British Columbia’s economic landscape are often leaving employers looking for ways to reorganize their businesses, cut expenses and lower their overhead. Unfortunately, employees often feel the brunt of these efforts. People often contact lawyers asking the question “can my employer do that?” and the answer is invariably, it depends.
If an employer makes a significant change to a fundamental term or condition of the employee’s employment without the employee’s consent, then the change may amount to a breach of contract and the employee may be able to claim that he or she has been “constructively dismissed”. There are a number of circumstances that have classically given rise to a successful claim in constructive dismissal including: demotion, relocation, changing job responsibilities, working conditions, changing hours of work, and a reduction in remuneration.
On one hand, employers are entitled to make small changes to an employment contract. On the other hand, if those changes are as seen as changing a fundamental term of the employment relationship then a constructive dismissal may have occurred.
If you think that you’ve been constructively dismissed you have two options. Option 1) You can treat the fundamental change in your employment as a dismissal and collect any pay in lieu of notice which you will be entitled to pursuant to your employment contract, statutory minimums, or common law. Option 2) You can acquiesce to the change in your employment. If you acquiesce, then you have accepted the change to your employment and you have no further recourse.
Timing becomes a concern in constructive dismissal because you need to determine how much time you have to either assert that you have been constructively dismissed or acquiesce to the change. While the courts have not given us a specific rule, they have proposed that an election must be made in a reasonable period of time. In assessing what a reasonable period of time is, the courts will look at factors such as:
The BC Court of Appeal in Farquhar v. Butler Brothers Supplies Ltd., 1988, 23 BCLR (2d) 89 has suggested that employees are entitled to “the opportunity to assess their changed situation for a reasonable time, and decide whether they could accept it”. Once this reasonable period of time has expired, then an employee’s right to claim that they have been constructively dismissed will be extinguished. This window of time also allows you to weigh the pros and cons of continuing with your current employer. It allows you the time to consult your friends and family. It also allows you the time to seek legal advice if you’re unsure if a constructive dismissal has actually occurred.
In conclusion, if an employer unilaterally makes a fundamental change to your employment then you may have been constructively dismissed. If you do nothing, then you are accepting the fundamental change and will have no recourse against your employer. You do however have a reasonable period of time to assess your situation and make a decision on maintaining your employment or treating the change as a dismissal. If you find yourself in this situation, a legal professional will be able to offer you guidance on whether or not you’ve been constructively dismissed and what type of notice period you might be entitled to.