HR'ish / Legal question?

Hey Guys,

My wife just called me and let me know that her company was dissolving her department. They are offering her a new position at the same pay, however she is disgusted by the management team that she would be under.

The management has told everyone that they can apply for a transfer within the company but it must be approved by April 1st. If they cannot get it completed in this time they must stay in the department for 6 months before anyone can have a transfer approved. Essentially that is 1 weeks time to get a resume out to another department, interviewed, and accepted. This alone does not seem right. To add onto that my wife has vacation that has been approved for months that starts on Monday the 29th. So she only has until Friday to get transfered it would seem.

Any advice on this situation would be greatly appreciated.

Disclaimer: not an HR expert, though I worked in benefits.

I’d say not illegal, though not particularly kind. They’re just moving her from one position in the company to another, which is well within their rights under almost any circumstances. (It would be different if it substantially reduces her ability to earn her current commission, for instance, or if it’s a position she’s unqualified for or isn’t physically capable of doing. Hating her new supervisor doesn’t count, unfortunately.)

Depending on how you look at it, they could say that they’re being somewhat generous to even allow people to keep jobs instead of laying them off.

Depends where.

In many places in the USA, the worker has no rights and can be dismissed at any time. Some states they don’t even owe you separation pay.

in Canada, for example, there is an implied contract (unless there is an explicit one like a union contract). The employer, as the one with most of the power in the arangement, owes a duty to be fair. The situation you describe - if it is a lateral move, same salary, job , benefits, working conditions - nothing wrong with that. Boss being an @$$hole is part of the territory.
If they demote you significantly, it’s “constructive dismissal” and you can opt for separation pay instead. If they lay you off - anything except fired for cause - they owe you separation pay of 2 ot 3 weeks, or more depending on how fancy the job is: skills and specialty of job, time spent, age and difficulty of market all come into consideration - usual rule of thimb for professionals is up to 1 month per eyar of service. Punitive damages (“Wallace damages”) come into play if they treat you with disrespect (i.e. security escorts you out fo no reason, accused of misbehaviour that’s not true). Layoffs must be handled very carefully in Canada.

As for the timeline - unless they can prove the timeline was forced by circumstances, they are being arbitrary and if it causes significant hardship, Wallace damages might come into play in Canada.

For the USA, well, sucks to be her. All she can do is play the game.

In any circumstances, calling in the lawyers and/or playing hardball is a last resort, because ultimately they CAN get rid of her, even if it costs them to do so. What do you want - separation pay or keep a job? If I understand the issue, if she doesn’t like the alternative bosses, wait 6 months and then try again… maybe things will have changed.

At the risk of a hijack, let’s set a few things straight…

I can appreciate the point you’re trying to make, but in the interests of fighting what we like to fight here, let me run down a list of clarifications arising out of your post:

– Constructive dismissal requires a “fundamental change to the employment contract.” See, for example, Farber v. Royal Trust Co., [1997] 1 S.C.R. 846. A fundamental change need not be a demotion, however.

– A general rule for proceeding with a suit for constructive dismissal requires the plaintiff to quit work before the employer can layoff or fire. There is no opting for separation pay; the employee submits notice and leaves at the end of the notice period. Statutory provisions allow the employer to pay off the employee immediately and send them packing, but that’s the employer’s option, not the employee’s. See, for example, Alberta’s Employment Standards Code, R.S.A. 2000, c. E-9, s. 59(1). Very generally speaking, the employee who quits and leaves without notice has a difficult, and often expensive, experience claiming minimum severance later.

– Minimum severance pay for all jobs (no matter how fancy) is mandated by law in the applicable Employment Standards legislation.

– Common law damages can be, and often are, higher than statute minimums; and do depend on skills, age, etc.; but the “one month per year of service” guideline is hardly a rule. Look through the cases on Canlii for examples. Note also that regardless of what the final damages are found to be, they can still be subject to deductions for lack of mitigation, deductions for other factors (e.g. a non-compete agreement), as well as statutory deductions (income tax, CPP, EI).

– Punitive damages are not Wallace damages. Punitive damages of all sorts, and the circumstances in which they may be awarded, are discussed nicely in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at para 196. See also Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595, which builds on Hill.

– Wallace (that is Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701) has been progressively weakened through subsequent decisions, and it is unlikely that we will see many more awards of Wallace damages in the future, if we see them at all. For the reasons why, see Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 S.C.R. 362.

To all, but especially to the OP, this is intended as general information only, and was posted to clarify errors made in a previous post. Applicability to specific situations may vary this information. For competent legal advice specific to your situation, consult a lawyer licensed to practice in your jurisdiction.

Okay, end of hijack.