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Is a transfer to a different position with the same pay grade constructive dismissal? The court in Maasland v. City of Toronto, 2015 ONSC 7598 (CanLII) says that in the right circumstances, it certainly can be.
The Plaintiff, Lisa Maasland (“Maasland”), began working for the Corporation of the City of Toronto (“the City”) in 1989, originally as a Software Programmer in the Traffic Signal Control Centre of the Transportation Department. In 1992, she was promoted to Programming Supervisor within the Corridor Traffic Control Section, and in 1999 was again promoted, this time to Senior Systems Engineer within the same department. Maasland was close to retirement during the final year of her employment, being 57 years old, highly skilled, and holds a Professional Engineer (“P.Eng”) designation as well as numerous other certifications.
Maasland had nearly 25 productive years with the City and was enjoyed great success in her position. Approximately three years prior to her dismissal, the City began an internal review of its organization structure and the responsibilities of the various sub-units therein in an effort to improve efficiency.
As a result of this review, it was determined that there was an overlap in tasks; two Traffic Management Centre units were performing similar information technology (“IT”) roles. One of these units was headed by Maasland and the other by a man named Georgian Titichi. The City made the decision in the spring of 2014 to rename Titichi’s unit and consolidate Maaslan’s unit thereunder, and to move Maaslan to a new unit with her still functioning as an engineer at the same rate of pay.
What Maasland thought would be a comparable position to her prior role ended up being a dead-end desk job. She was stationed in a practically empty space, with only one report; a stark contrast from her prior role which involved a fast-paced, engaging work environment in which she had multiple reports.
When inquiries into other positions proved unsuccessful, Maasland retained legal counsel and a letter was sent to the City noting that the situation was constructive dismissal. Nothing came of the letter, and Maasland did not return to work, initially utilizing vacation time and leave time, but eventually, when given an ultimatum, refused to attend at the premises. Not surprisingly, on December 15, 2014, Maasland’s employment with the City was terminated on the basis of job abandonment.
Maasland started an action for constructive dismissal, on the basis that her position had been effectively eliminated by her employer. The matter proceeded to a motion for summary judgment on November 18, 2015, with the Honourable Justice Mew presiding.
1. Was the Plaintiff constructively dismissed?
2. If so, what was the Plaintiff’s reasonable notice period?
The test for constructive dismissal laid out in Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10 (CanLII),  1 S.C.R. 500 is “whether, at the time the alleged breach of the employment contract occurred, a reasonable person in the same situation as the employee would have felt that the essential terms of her employment were being substantially changed”(para 60). Justice Mew found that the Plaintiff had been constructively dismissed when she was transferred to a new unit on April 2, 2014. Justice Mew, in particular, drew a parallel to the case in Corker v. University of British Columbia, 1990, Carswell B.C. 726 (BCSC) wherein the Plaintiff had been transferred from her role as a counsellor to a paper pusher, cataloguing reference materials for the University. The change was also found to have been a constructive dismissal in that case. Justice Mew also seriously questioned the conduct of the Defendant in Maasland for attempting to relieve itself of the obligation to offer Maasland a package by initiating the role change to delete the Plaintiff’s position.
Pay in Lieu of Notice
At the time of her dismissal, Maasland was 57 years old and had been working for the City for 25 years. The City attempted to assert that Maasland should be held to its “Position Termination Schedule”, akin to a termination provision, citing related authorities wherein the Plaintiff had been awarded notice in accordance with such a policy. However, Justice Mew chose not to utilize this principle as the authorities cited dealt with circumstances wherein the employee had been offered a severance package at the time of termination.
The Learned Justice Mew found that certain factors, specifically Maasland’s age, impressive skill set, elongated tenure and the availability of comparable employment served to elongate the period, and awarded 26 months’ notice, as well as compensation for benefits and sick pay which would have been earned throughout the notice period had the termination not occurred.
The Plaintiff was awarded costs on a partial indemnity basis.
The courts do not always take such a “cut and dry” approach to constructive dismissal, however, abandoning your position (or resigning) when you believe you’ve been constructively dismissed can be highly risky and is usually not advisable. In Maasland, for instance, had the City been able to prove that there was a job abandonment and if the learned judge had disagreed that Maasland was constructively dismissed, she would not have been awarded any notice and would have likely had costs awarded against her. If you have any questions about your employment situation, contact Monkhouse Law today for a free consultation.