The Question
I went on vacation for two weeks to get married and came back to find out I was demoted. My supervisor moved me to a different department and, although my pay and benefits are the same, I am nonetheless in a more junior role. What can I do?
The First Answer
Daniel Lublin, partner, Whitten & Lublin Employment & Labour Lawyers, Toronto: A demotion can be a constructive dismissal. If an employer imposes inferior employment terms, an employee can sometimes reject those changes, leave his or her job, and sue for damages while looking for another job. This action is not limited to a demotion and can arise in response to any adverse employment change, such as a different pay scale or loss of pay, loss of supervisory responsibilities, being transferred to a different location, having to work different hours or any other fundamental change.
However, different terms or workplace conditions, even substandard ones, will not automatically justify an employee’s decision to resign and sue. The changes must be objectively clear and not perceived, they must be fundamental changes that affect the root of the employment relationship, and the changes must be such that remaining at work under the new terms is an unreasonable request.
If the preconditions for a constructive dismissal are met, an employee who is demoted could leave the workplace and claim constructive dismissal damages. Otherwise, the best course of action may be to stay put but to complain and work under protest. Ultimately, what you should do will depend on the magnitude of the changes and whether leaving your job will be viewed as a reasonable response. This is why it is important to get legal advice right away and before taking any steps, such as walking off the job, that could jeopardize the health of a potential claim.
The Second Answer
Natalie MacDonald and Mackenzie Irwin, MacDonald & Associates, Toronto: That sounds quite unfair. First, a unilateral demotion to a more junior role may be grounds for asserting constructive dismissal, entitling you to reasonable notice, even if there are no changes to your pay and benefits.
Constructive dismissal occurs when an employer unilaterally makes a substantial change to the terms of employment. If this is successfully established, the employee is entitled to whatever they would have if their employment had been terminated by the employer.
Employers may be justified in demoting an employee if the employee is demonstrably unfit for the position they hold. To justify the demotion, the employer must properly communicate reasonable expectations to the employee, necessary for the position, and that the employee failed to meet those expectations, despite being provided with sufficient support and training.
An employer may be justified in demoting an employee where the employee misconducted him or herself, or where the employer has eliminated the employee’s original position as part of a reorganization of the company.
Navigating a constructive dismissal is tricky. Employees must express clear objections to what is happening and seek the advice of an employment lawyer.
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