Date: Tuesday, January 3, 2011
Author: Daniel A. Lublin
Publication: The Globe & Mail
THE QUESTION: I am a 33-year-old professional who has recently been told, after 12 years, that my position has been eliminated. I work for a global company as a regional manager for North America, but am paid through our Canadian office. Just over a year ago, the organization was restructured and I was promoted from a supervisor in Canada to my new role reporting to a director in our U.S. office.
The vice-president of our Canadian facility to whom I use to report did not agree with the corporate directives I was responsible for implementing and we often had professional disagreements about the “old way of running things” versus our new corporate strategy. He made my new role so challenging that my director often had to intervene. Another restructure has just happened and our Canadian facility has now been given back to my old boss with all Canadian employees reporting directly to him.
I was told by HR that my position had been eliminated. My American boss said I could go home and continue to work from home and continue to be responsible for the three remaining departments I had in North America and remain on the Canadian payroll for two more weeks. Meanwhile, she is continuing to work with corporate to offer me a position working for the Americas with 70 per cent more travel.
I am now sitting at home wondering about my future while I mourn the loss of a position I held with many successes and much praise. I have no idea what will be presented to me in two weeks. What are my rights and what should I be prepared for when this meeting occurs?
THE ANSWER: There are a number of components of your position, such as your job title, reporting relationships, level of status, remuneration and, not least, the location of your job, which are considered so essential that your employer is prohibited from unilaterally changing them without sufficient notice or your consent. Making such a unilateral change amounts to a breach of contract, known as a constructive dismissal, which is a claim against your employer for severance pay even though you were not formally fired.
After 12 years, the location of your job and your required amount of travel have become implied terms of your employment relationship. By that, it appears that you have come to reasonably expect that you will work from the Canadian office and with a limited amount of travel.
However, if your employer decides to change your reporting relationships such that you would be required to travel up to 70 per cent more, most reasonable people assessing the matter objectively would consider this to be a fundamental change to your day-to-day work and your life. In these circumstances, your employer cannot simply force the change upon you, without flirting with a constructive dismissal claim.
Assuming that the revised job is not something that you are interested in performing, you would have the legal right to insist on a position that is comparable in all respects to the job that you held. If your employer did not provide you with a comparable role, in light of your protests, you are then in a position to consider the employment contract ended, leave the job and pursue damages for constructive dismissal.
If you are convinced that the revised job being offered to you is not to your liking, there may be an easier and simpler route to take than a constructive dismissal claim. First, your employer may decide to just terminate you rather than offer you a revised role. If so, the fact that you had some sort of a conflict with your Canadian supervisor is entirely irrelevant. Your employer always had the right to terminate your job without providing you with a good reason, as long as you are provided with a good severance package. Alternatively, you could make your request for a severance package known to your employer, personally or through a lawyer. Since your Canadian position has been eliminated and it is not clear if they have another role for you, I think this is where your matter is headed anyway.
If they do offer you another position that interests you, then you are free to try it, consider it after some time and later agree to it, thus entering into a new contract with your employer. However, if you change your mind after a reasonable period of time in the new role, you will have lost the legal right to protest that change, since you will have either agreed to or condoned it by taking up the new job.
In summary, here are the key takeaways:
- The conflict with your Canadian boss is irrelevant. It does not matter whether he was the reason your job was eliminated.
- If the company terminates your role, along with your employment, then it has to pay you severance and a sizable amount given your senior position and tenure. Get a lawyer to review the severance package – and never take the first offer you receive. Severance packages are negotiable, so always ask for more.
- If the company terminates your role but not your employment, it has to offer you a comparable role, in all reasonable respects. Otherwise, this would amount to a breach of contract known as a constructive dismissal.
At the meeting that will be held, make sure to take notes, ask for the company’s position in writing, and be sure not to agree to anything without an opportunity to consider it first with a lawyer.