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The question

My company recently let go of all the sales staff except me. In 12 years, I’ve always done new sales while a separate team concentrated on retaining customers. Since the layoff, they have asked me to take on the retention job as my main responsibility, but also continue to generate new sales. I am salary plus commission. The day of the layoffs, the president, with the HR rep present, told me to expect an increase in salary since commissions would be withdrawn in favour of a bonus plan. I finally received my new comp plan with no increase in salary and the bonus structure seems unattainable. I will most likely make less money than before. What are my options? Can I decline and still get a severance? My fear is that if I don’t hit the bonus goals, they would have grounds to fire me for bad performance, without severance.

The first answer

Eleanor James

Personal communications and employee retention, thejamesthinkstitute.ca, Toronto

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It’s hard to fathom what goes on in people’s minds. So much effort to plan these fancy moves, maybe thinking you won’t notice. But you have. This seems to be a no-win situation because every way you turn there are obstacles and untruths. This company has a flawed method of retaining the person who’s supposed to retain the customers. As I said, hard to fathom.

It’s worth a clarifying conversation, saying this is what you took away from the original (witnessed) conversation and that it now appears quite changed. Talk about the details, such as the nature of the job, the workload, your salary and bonus. Represent yourself by presenting the facts with clarity and diplomacy, and avoid burning bridges.

You may not want to stay there after all, given their treatment of you. This would be a good time for legal advice.

The second answer

Daniel Lublin

Partner, Whitten & Lublin Employment Lawyers, Toronto

This sounds like the old bait-and-switch. You hung around because you were given the opportunity to earn a greater bonus, instead of variable commissions, but then the metrics to hit that bonus were set so high that you will earn less in the end, not more. The courts generally frown upon such tactics, especially given the broken promise to increase your base pay.

A company is entitled to make changes to your compensation structure and responsibilities. But any amendments must be reasonable, must be imposed in good faith and must not result in a significant loss of pay or a demotion. In your situation, it appears that the company would not be able to meet any of these elements to justify making the changes without your consent.

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You could stay and work under protest, while you look for a new job elsewhere. But any income you receive from your current employer during this time frame would offset most of the damages you could otherwise claim. If you see staying as a losing situation that won’t get any better, the other course of action is to leave your employment and assert you were constructively dismissed. A successful claim would result in a severance package that should compensate you while you look for other work. A good lawyer will guide you through the process.

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