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THE QUESTION

I had been with my company almost 20 years when it was taken over by a larger company. Layoffs were inevitable and I anticipated a great severance package. But last week, the new company presented an offer for a job like the one I was doing, except I would report to someone who used to report to me. The company said, "Take it or there is nothing."

THE FIRST ANSWER

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Daniel Lublin

Partner, Whitten & Lublin Employment & Labour Lawyers, Toronto

There is no implied right to a severance package, no matter how long or meritorious your service. The entitlement to a package arises only if you are terminated for any reason other than misconduct, including layoffs and restructuring, or if you are constructively dismissed. Without a termination, one way or another, there is no severance package.

A constructive dismissal is really a termination is disguise. Sometimes an employer makes key changes to your position, compensation, or duties, or it generally mistreats you. If the changes are prejudicial to you and humiliating, you may be entitled to leave work and claim an entitlement to a severance package, even though your employer never said or wrote that you were dismissed. The key is establishing that the changes to your job were significant and a reasonable person would not be expected to remain in the role.

Changes to your reporting structure could be a constructive dismissal, especially where you are reporting to someone who used to report to you, but I would not count on this fact alone, since the job you are being asked to take on is similar to the one you had.

You need to first figure out what "take it or nothing means." Be careful not to indicate that it's your preference to see a package because this strategy could backfire. I usually tell my clients that if a company knows that you want a package, they can be far less likely to offer you one, in the hope that you will just pack up and leave on your own, without a payment. Next, get specific advice about whether or not you have a viable constructive-dismissal case, as this may be your only option.

THE SECOND ANSWER

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Eileen Dooley

Vice-president, VF Career Management, Calgary

When big companies buy big companies, employee reactions vary from, "What is going to happen to my job?" to, "Show me the money!" The latter is especially true for long-term employees who potentially stand to receive a significant severance amount.

When the new company offers the long-term employee a job, there is relatively limited choice in the matter, especially when it is a similar job with similar responsibilities. If the job is not accepted, usually the only alternative is to take the mandatory amount specified in the Employment Standards Code, which means the employment has ended.

Since a lucrative severance is off the table, consider this a prime opportunity to assess your career, within the new company or elsewhere. Recognize that it is common for the culture of the purchasing company to prevail going forward, forcing you to examine this aspect carefully.

In not accepting the role offered, you'd see a smaller payout but have the time and focus for finding a new role. In contrast, taking the job may preserve your seniority in the event of future layoffs and may present new opportunities you haven't considered or that weren't an option with the former company. Either way, stay in charge of your career by removing the severance money as a primary decision factor and focus instead on what you want out of your work in terms of challenge and opportunity.

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