My last employee evaluation indicated that though my overall competence was high, my ability to communicate and interact with clients was in poor shape. As a result, my company enrolled me in a series of workshops to improve my listening and speaking skills, but the workshops failed to deliver. In the end, I was demoted, lost a big chunk of my salary and almost all my health benefits.
The loss could have been minimized if the workshop had been run as promised. Is there some way to make the workshop organizers (and maybe even the instructor herself) accountable for the consequences of their actions?
THE FIRST ANSWER
Sara Forte, employment lawyer, Forte Law, Surrey, B.C.: There is very little you can do to hold the workshop organizer or instructor accountable, from a legal perspective. It sounds like the contract for workshop delivery was between your employer and the workshop provider, so you would not have a claim against the workshop provider based on breach of a contract with you. We would need to explore what you mean by “run as promised.” For example, a driving school might offer a “money-back guarantee” if you don’t pass the driver’s test. It seems unlikely that a communications workshop would make a similar promise. There is some possibility that you could have a claim against the workshop provider for negligence or interference with contractual relations between you and your employer, but it seems like a long shot based on the facts provided.
Have you considered whether you might have a legal claim against your employer? While your performance issues might be a factor, a significant demotion can be a constructive dismissal in some circumstances. The legal definition of constructive dismissal is a fundamental, unilateral change to your employment. To be fundamental, the change must be very significant. For example, if you were demoted from a management position to an entry-level role, that could be fundamental. Unilateral is also a key requirement. If you agreed to the change or went along with it without objecting and continued in the new position for some time, it is not constructive dismissal.
THE SECOND ANSWER
Samantha Lamb, partner, Jewitt McLuckie & Associates, Ottawa,: Unless there was a specific contractual relationship between yourself and the workshop providers, it’s unlikely that you would have any action against either the providers or a specific instructor. You can only sue them for a breach of contract if you were a party to the contract in the first place, and it doesn’t sound like you were. Even if you had a direct contractual relationship with the workshop provider, they weren’t the ones who decided to demote you so they likely can’t be held accountable for that decision. Your employer made the decision to demote, so any claim for lost salary and benefits most likely has to be against your employer.
If you want to stay with this employer, you will most likely have to accept the demotion for now and talk to your employer about a plan to build the skills that are lacking so that you can get back to your former position. If you are prepared to leave this employer, you may have a claim for what is called “constructive dismissal”, which is a claim that even though your employer didn’t actually fire you, they effectively did the same thing by dramatically changing your work duties, compensation, etc. You can’t start a claim for constructive dismissal while still working for this employer. You have to quit your job first and then start a claim for constructive dismissal so there is high risk involved in going this route.
A successful constructive dismissal claim only gets you financial compensation as if you were fired from the original job. It doesn’t get you your old job back, so before even considering a claim you need to be sure you are ready to sever all ties with your employer. The test for constructive dismissal is a high one and whether your case meets it depends on a lot of different factors, so you would want to meet with a lawyer to review all of the circumstances that led to your demotion as well as your alternative job prospects, before you make any decisions.
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