The question
My company underwent a job-evaluation review, and they compared our job titles, descriptions and salaries to the current job market. It resulted in my title being changed from specialist to assistant. My job description and salary have stayed the same. But on my resume, it looks like I’ve been demoted. Do I have any recourse to get my old job title back?
The first answer
Carly Crawford, lawyer, HHBG Lawyers Employment Justice, Vancouver
My answer below relates to non-unionized employees. If you are unionized, please speak with your union, as your collective agreement may deal with this issue.
Employers have a right to manage the workplace and may make organizational changes that affect staff. However, if your employer makes unilateral changes to fundamental terms of your employment agreement (whether written or verbal) with which you do not agree, or the employer demonstrates by its conduct that it no longer intends to be bound by the agreement, you could leave your position, claim “constructive dismissal” and potentially seek compensation.
A constructive dismissal may include significant reductions to job duties or responsibilities, pay reductions of at least 30 per cent or potentially a toxic-workplace issue. Minor changes alone do not usually amount to a constructive dismissal.
A job title change on its own is unlikely to constitute a constructive dismissal, especially if your new title is industry standard. Employees bear the burden of proving constructive dismissal and usually leave their job to do so. It can be risky to do this since your departure may be considered a resignation if you cannot establish constructive dismissal.
Practically, it might be useful to speak with your employer about your concerns. You should also retain a copy of both job descriptions to demonstrate to future employers that you were not demoted.
I also recommend that you contact the employment standards office or an employment lawyer in your province before taking any steps that might affect your employment.
The second answer
Waheeda Ekhlas Smith, barrister and solicitor, Smith Employment Law, Toronto
You may have recourse against your employer if you claim that the changes made constitute constructive dismissal.
Constructive dismissal occurs when an employer has not formally terminated an employee but has made a substantial change to an essential term and condition of the employment contract. That change would enable the employee to treat the employment relationship as having been terminated by the employer. In such situations, the employee can resign, treat the employment contract as having ended, claim constructive dismissal and seek damages as if they were actively terminated. Whether constructive dismissal occurred involves an analysis of all the facts.
If you are a non-unionized employee in Ontario, a “demotion” may constitute a constructive dismissal. Can a title change be considered a demotion, and in turn, a fundamental change to a term of your employment contract? Possibly. However, if your job description (including job duties) and salary have stayed the same, you would likely face a challenge making the claim that a title change alone was a fundamental breach of your employment contract.
Practically speaking, you should raise your concerns with your employer, put your objection to the title change in writing and ask them to reconsider the change. Claiming constructive dismissal can be risky as the burden to prove it is on the employee. Consult with an employment lawyer who will review your employment contract, including any language about being able to change job titles, provide legal advice and recommend next steps.
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Andrea Yu