Since starting with my current employer on October 1st 2011, have been at 18-per-cent commission. In May, it was announced that a second person with no experience in sales would be added to my department, that my commission rate would be cut to 15 per cent and that my income would be dependent on his sales as well. Last month, this change cost me close to $3,000 and, because of his inexperience in the industry, increased my workload and decreased my ability to take my days off. Does my employer have the right to do this?
THE FIRST ANSWER
Daniel A. Lublin Employment lawyer, Whitten & Lublin, Toronto
An employer cannot impose fundamental changes to your job and compensation that adversely affect you, without first giving you reasonable notice of the changes or obtaining your consent. Otherwise, the changes amount to a constructive dismissal, meaning you may be able to leave the workplace and sue for lost wages while you look for another job.
The tricky issue is whether the changes are significant or minor. Previous cases with similar facts can often provide some guidance. For instance, in a recent British Columbia case, a judge noted that employers can generally reduce compensation by up to 10%, without causing a constructive dismissal, as long as no other changes occur.
Here, you have to determine how much of a relative monthly loss $3,000 is. If it is only a few percentage points of your overall compensation, you can protest and object, but legally there is not much more you can do. However, if the changes are more substantial, you may be able to assert a constructive dismissal. Since it is a complex legal claim, it usually requires retaining a lawyer to advance the case and provide you with specific advice, including whether or not you can leave work and sue.
THE SECOND ANSWER
Bill Howatt Chief research & development officer, workforce productivity Morneau Shepell
It depends on your employee contract. If you think there is a breach of contract, it may be wise to get a legal opinion. It sounds like your employer gave you notice of change with respect to compensation and staffing, and typically, employers in sales-driven organizations are within their right to change these factors with due notice.
There are perhaps a couple of options for you. One is to spend energy being frustrated, focusing on the negatives, challenging the decision, and thinking about looking for a new job.
Option two is to objectively evaluate the opportunity. If this person's productivity impacts your compensation, and you still make 15 per cent on sales, you now have the opportunity to tap into a bigger compensation pool that, in time, could net more dollars. The new person's lack of experience is an obstacle, but what if you took an interest in supporting, coaching and encouraging him? This may be a better long-term option. Change can be difficult, and sometimes the benefits are not obvious, especially when viewed through the lens of familiarity.
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