El Bastardo
12-12-2013, 10:32 AM
The following is a submission from an anonymous Revscene member. Please keep responses on-topic, constructive, and relevant
I've been looking into the legal definition of the term due to an upcoming change in duties to my job that equal to an unjust demotion. In essence, it's when an employer has created a severely unsatisfactory work environment for an employee, or has breached their contract to a point where the employee is forced to resign. In the event of a constructive dismissal, an employee can quit while still being able to claim unmployment benefits as it is equivalent to a wrongful dismissal claim.
Interpretation Guidelines Manual, Employment Standards Branch, Ministry of Labour, Government of B.C. (http://www.labour.gov.bc.ca/esb/igm/esa-part-8/igm-esa-s-66.htm)
Factors to consider when applying s.66
In order for there to be a termination for purposes of this section, it must be proven that the employer has made a fundamental change to an employee’s terms and conditions of employment without providing the employee with reasonable notice of the change. It must be shown that the change made by the employer places the employee in a position of having to accept as a condition of continued employment, changes to wages, working conditions or benefits which an objective, reasonable person would find to be unfair, unreasonable and unacceptable.
It is not necessary to show that the employer’s intent was to encourage the employee to leave their employment.
If a substantial adverse change is made unilaterally by an employer and as a result of this change the employee makes the decision to quit, either immediately or within a reasonable period, it could still be considered that the ending of the employment relationship was the result of the employer’s actions and the employee would be considered to have been terminated for purposes of this section. Some of the factors to consider include:
reduction of wage rate;
change in geographic location;
limiting of authority;
demotion;
change in responsibilities, imposed solely by the employer.
In my case, I am a third-year apprentice technician slated to become one of the new "express lube" technicians that our shop is intending to implement in the new year. Objecting would have led to possible dismissal or threats from an assistant manager that has a controlling nature that has led to constant infighting, animosity, and general poor work environment. In addition, within the three years I have worked for my company, I have been in an environment that is counter-productive to my progress as an apprentice despite repeated requests to take on more challenging work. What I have been told was "in due time"; I understand the concept of paying your dues, but when a third year apprentice has only done one set of brakes and one drive belt within that period, the employer's contractual obligation to provide a learning environment for their apprentice has been broken somewhere.
In short I feel like I have been demoted in position, because the Express Lube concept is generally limited to pre-apprentices or first years. I feel like I can make a constructive dismissal claim so I can quit but retain EI benefits in the event things get to the point where quitting is the only option. Does anyone think I have the grounds to do so?
I do expect replies along the lines that "I'm butthurt that I complained about a change in duties", or "You're not experienced enough and should still change oil for a little longer". However, apprenticeships should be about hands-on learning, not picking up scraps of knowledge merely watching a journeyman work in between oil changes, or making a diagnosis only to have it passed away because "it pays good money".
tl;dr for those who didn't read: I feel that my upcoming change to a designated lube technician will lead to a reduction in duties that sum up to a unfair demotion, coupled with a hostile work environment. Delegation with the employer has yielded no compromise. Do I have grounds for a "Constructive Dismissal" claim under the Employment Standards Act Section 66?
Thanks for taking in a long-ass read.
I've been looking into the legal definition of the term due to an upcoming change in duties to my job that equal to an unjust demotion. In essence, it's when an employer has created a severely unsatisfactory work environment for an employee, or has breached their contract to a point where the employee is forced to resign. In the event of a constructive dismissal, an employee can quit while still being able to claim unmployment benefits as it is equivalent to a wrongful dismissal claim.
Interpretation Guidelines Manual, Employment Standards Branch, Ministry of Labour, Government of B.C. (http://www.labour.gov.bc.ca/esb/igm/esa-part-8/igm-esa-s-66.htm)
Factors to consider when applying s.66
In order for there to be a termination for purposes of this section, it must be proven that the employer has made a fundamental change to an employee’s terms and conditions of employment without providing the employee with reasonable notice of the change. It must be shown that the change made by the employer places the employee in a position of having to accept as a condition of continued employment, changes to wages, working conditions or benefits which an objective, reasonable person would find to be unfair, unreasonable and unacceptable.
It is not necessary to show that the employer’s intent was to encourage the employee to leave their employment.
If a substantial adverse change is made unilaterally by an employer and as a result of this change the employee makes the decision to quit, either immediately or within a reasonable period, it could still be considered that the ending of the employment relationship was the result of the employer’s actions and the employee would be considered to have been terminated for purposes of this section. Some of the factors to consider include:
reduction of wage rate;
change in geographic location;
limiting of authority;
demotion;
change in responsibilities, imposed solely by the employer.
In my case, I am a third-year apprentice technician slated to become one of the new "express lube" technicians that our shop is intending to implement in the new year. Objecting would have led to possible dismissal or threats from an assistant manager that has a controlling nature that has led to constant infighting, animosity, and general poor work environment. In addition, within the three years I have worked for my company, I have been in an environment that is counter-productive to my progress as an apprentice despite repeated requests to take on more challenging work. What I have been told was "in due time"; I understand the concept of paying your dues, but when a third year apprentice has only done one set of brakes and one drive belt within that period, the employer's contractual obligation to provide a learning environment for their apprentice has been broken somewhere.
In short I feel like I have been demoted in position, because the Express Lube concept is generally limited to pre-apprentices or first years. I feel like I can make a constructive dismissal claim so I can quit but retain EI benefits in the event things get to the point where quitting is the only option. Does anyone think I have the grounds to do so?
I do expect replies along the lines that "I'm butthurt that I complained about a change in duties", or "You're not experienced enough and should still change oil for a little longer". However, apprenticeships should be about hands-on learning, not picking up scraps of knowledge merely watching a journeyman work in between oil changes, or making a diagnosis only to have it passed away because "it pays good money".
tl;dr for those who didn't read: I feel that my upcoming change to a designated lube technician will lead to a reduction in duties that sum up to a unfair demotion, coupled with a hostile work environment. Delegation with the employer has yielded no compromise. Do I have grounds for a "Constructive Dismissal" claim under the Employment Standards Act Section 66?
Thanks for taking in a long-ass read.