My boss has recently told me that he wants one of my direct reports reporting to him directly on certain matters and bypassing me. Is this considered a significant change in reporting responsibility in order to claim constructive dismissal?
The First Answer
Elichai Shaffir, partner, Cavalluzzo LLP, Toronto: As you may already know, a constructive dismissal occurs when one party to the employment agreement (typically the employer) unilaterally makes a substantial change to a fundamental term of the employment agreement. This could include a change in reporting responsibility. I would note, however, that not all unilateral changes in reporting responsibility constitute a constructive dismissal. For example, an employer has the right to make minor or incidental changes to aspects of the employment relationship, which could include varying existing reporting structures. Furthermore, an employer may also have the right to make significant or even fundamental changes to one’s employment, if an express or an implied term of the employment agreement gives it the ability to do so.
The answer to your question, therefore, would require a detailed review of the terms of your employment in order to determine whether the circumstances you describe amount to a breach and, if there has been a breach, whether it amounts to a fundamental breach, such that your job has substantially changed as a result. I would encourage you to meet with an experienced employment lawyer without delay to help answer this question. Your lawyer can then gauge the strength of your case and help devise a strategy to obtain the result you want. Perhaps more importantly, an experienced employment lawyer can help you navigate this complicated area of law and avoid the many pitfalls, some of which could be very costly, that often trip up employees who advance constructive dismissal claims.
The Second Answer
Susanna Quail, partner, Allevato Quail & Roy, Vancouver: Well, it depends. How significant is this change in reporting structure for your job over all? Is this direct report one of two people who report to you or one of 20? Are these “certain matters” the core of what you direct this person on or something more tangential? Do you spend the bulk of your day performing the work that is now being reassigned to your boss or only a small portion? Do you have a written employment contract and, if so, does it set out your responsibilities including the responsibilities in question here?
Generally speaking, employers can rearrange reporting responsibilities without triggering constructive dismissal: It would be impossible to flexibly manage a work force and respond to changing business demands otherwise. Constructive dismissal might be triggered where the change in reporting relationships has the effect of hollowing out your job duties or effectively demoting you in the overall hierarchy of the organization. From the limited information you have provided – only one direct report affected, and only on certain matters – it doesn’t sound like that’s what happened, but there is a lot more information required to make that determination.
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