Can an employer ever move an employee upwardly or laterally without fear of constructively dismissing an employee?
Since 1989 Barry Dykes worked as the manager, human resources, for Saan Stores Ltd. His duties involved a general human resources role for over 3,500 employees at 250 stores across Canada. He supervised three employees who reported directly to him. Mr. Dykes always received favourable annual performance reviews.
In 1999 Mr. Dykes was seconded from his usual duties to work on a new project known as human resources information services (HRIS). This project involved preparing human resource projects dealing with planning and development. Initially the secondment was expected to last six months. However, on Mr. Dykes’ initiative, additional matters were included in the project and it lasted approximately one year. The employer was very satisfied with Mr. Dykes’ work on this project.
While Mr. Dykes was working on the HRIS project, the vice-president of Saan received several complaints from the employees that Mr. Dykes supervised. The complaints referred to his high-handed manners and his attitude towards the employees. The employees accused him of not listening to their suggestions. The vice-president regarded these complaints, if true, as serious, particularly since Saan Stores was trying to establish positive policies for employees and their relationships with customers and other employees.
In June 2000 Mr. Dykes was asked to attend a meeting with the vice-president. Mr. Dykes believed the meeting was to discuss the HRIS and was surprised when he learned that the purpose of the meeting was to discuss the complaints against him. At that meeting the vice-president decided to move Mr. Dykes from his position as manager, human resources, to a newly created managerial position or one to be created but not yet developed.
The new position was manager, HR planning and development. In his new position Mr. Dykes would no longer have staff supervision over the three employees. His duties would change from managing customer relations and training to duties that involved planning and developing programs as they related to customers and employees.
Mr. Dykes was concerned that this new position would result in the loss of the direct contact he enjoyed with the vice-president. However, he was to remain a senior management employee at the human resources level as well as retain his salary and bonus and benefit entitlement.
In December 2000 Mr. Dykes finished his secondment with the HRIS project. He knew that he would not be returning to his position as manager, human resources, but to the new position of manager, HR planning and development. On Dec. 7, 2000, he removed his belongings from the office and left without advising anyone that he had quit or that he was treating the offer of the new position as constructive dismissal. Shortly after he left he informed Saan that he was seeking damages for constructive dismissal. An action was subsequently brought.
Constructive dismissal will be found where an employer has breached a fundamental term of an employment contract. In such a case an employee is justified in considering that his employment has been terminated.
The question in this case was whether a lateral move amounted to a change of a fundamental term of the employment contract. In other words can an employer ever move an employee upwardly or laterally without fear of constructively dismissing an employee?
The fact that employees brought complaints against Mr. Dykes was a valid reason for Saan to want to move Mr. Dykes to a new position. Both Saan and the Court were satisfied that Mr. Dykes had the necessary skills to be able to perform the work of manager, HR planning and development.
In other decisions dealing with a lateral move of a managerial employee the Courts have treated the management function as the fundamental term of the contract, while the responsibilities of the position are the duties within the ambit of that management function. So long as the duties relate to human resources activities and Mr. Dykes has the ability to carry them out with a management function, there is no breach of the employment contract.
While Mr. Dykes may not have liked the work in the new position as much as his old duties, the Court held that as long as it falls within the general human resources framework, as it did here, it is the employer’s right to move an employee when it deems to be in the best interests of the company so long as it is within the competence of the employee. Mr. Dykes had demonstrated his abilities in planning and development in his work on the HRIS project. Had Mr. Dykes been moved to a different department or to a position that no longer had the character of a manger in the human resources field, it could be said that there was a fundamental breach of his contract.
For these reasons the claim for constructive dismissal was dismissed.
For more information:
•Dykes v. Saan Stores Ltd., 2002 MBQB 112.
In 1999 Mr. Dykes was seconded from his usual duties to work on a new project known as human resources information services (HRIS). This project involved preparing human resource projects dealing with planning and development. Initially the secondment was expected to last six months. However, on Mr. Dykes’ initiative, additional matters were included in the project and it lasted approximately one year. The employer was very satisfied with Mr. Dykes’ work on this project.
While Mr. Dykes was working on the HRIS project, the vice-president of Saan received several complaints from the employees that Mr. Dykes supervised. The complaints referred to his high-handed manners and his attitude towards the employees. The employees accused him of not listening to their suggestions. The vice-president regarded these complaints, if true, as serious, particularly since Saan Stores was trying to establish positive policies for employees and their relationships with customers and other employees.
In June 2000 Mr. Dykes was asked to attend a meeting with the vice-president. Mr. Dykes believed the meeting was to discuss the HRIS and was surprised when he learned that the purpose of the meeting was to discuss the complaints against him. At that meeting the vice-president decided to move Mr. Dykes from his position as manager, human resources, to a newly created managerial position or one to be created but not yet developed.
The new position was manager, HR planning and development. In his new position Mr. Dykes would no longer have staff supervision over the three employees. His duties would change from managing customer relations and training to duties that involved planning and developing programs as they related to customers and employees.
Mr. Dykes was concerned that this new position would result in the loss of the direct contact he enjoyed with the vice-president. However, he was to remain a senior management employee at the human resources level as well as retain his salary and bonus and benefit entitlement.
In December 2000 Mr. Dykes finished his secondment with the HRIS project. He knew that he would not be returning to his position as manager, human resources, but to the new position of manager, HR planning and development. On Dec. 7, 2000, he removed his belongings from the office and left without advising anyone that he had quit or that he was treating the offer of the new position as constructive dismissal. Shortly after he left he informed Saan that he was seeking damages for constructive dismissal. An action was subsequently brought.
Constructive dismissal will be found where an employer has breached a fundamental term of an employment contract. In such a case an employee is justified in considering that his employment has been terminated.
The question in this case was whether a lateral move amounted to a change of a fundamental term of the employment contract. In other words can an employer ever move an employee upwardly or laterally without fear of constructively dismissing an employee?
The fact that employees brought complaints against Mr. Dykes was a valid reason for Saan to want to move Mr. Dykes to a new position. Both Saan and the Court were satisfied that Mr. Dykes had the necessary skills to be able to perform the work of manager, HR planning and development.
In other decisions dealing with a lateral move of a managerial employee the Courts have treated the management function as the fundamental term of the contract, while the responsibilities of the position are the duties within the ambit of that management function. So long as the duties relate to human resources activities and Mr. Dykes has the ability to carry them out with a management function, there is no breach of the employment contract.
While Mr. Dykes may not have liked the work in the new position as much as his old duties, the Court held that as long as it falls within the general human resources framework, as it did here, it is the employer’s right to move an employee when it deems to be in the best interests of the company so long as it is within the competence of the employee. Mr. Dykes had demonstrated his abilities in planning and development in his work on the HRIS project. Had Mr. Dykes been moved to a different department or to a position that no longer had the character of a manger in the human resources field, it could be said that there was a fundamental breach of his contract.
For these reasons the claim for constructive dismissal was dismissed.
For more information:
•Dykes v. Saan Stores Ltd., 2002 MBQB 112.
