B.C. worker hired to fill two roles; removed from one for 'making mistakes'
A worker who resigned from his employment after his employer told him he would no longer be assigned to one of the two roles he performed was not constructively dismissed, the British Columbia Civil Resolution Tribunal has ruled.
Coast to Coast Traffic Solutions (C2C) is a Burnaby, BC-based company that provides traffic management services for construction projects. In March 2022, C2C hired the worker to be both a traffic control person and a lane control technician. He earned different wage rates for each position - $25 per hour as a traffic control person and $30 per hour as a lane control technician. His first day of work was March 7.
When the worker was hired, the CEO indicated that C2C would place the worker in lane control technician roles when available, but otherwise he would work as a traffic control person. There were periods of time where he spent more time working as a lane control technician, but he continued to frequently work in the other role.
One day, there was an incident while the worker was working as a lane control technician that resulted in damage to a company vehicle. C2C filed a claim through the Insurance Corporation of British Columbia (ICBC) and the worker contacted ICBC personally about it. On Sept. 2, the worker relayed some information from his call to C2C’s CEO, who wasn’t happy about him contacting ICBC on his own.
Job duties removed
The CEO told the worker that he wasn’t fit for lane control technician duties because he made “too many mistakes.” As a result, the worker would be working only as a traffic control person going forward.
The worker resigned from his employment the same day and filed an application with the tribunal on Dec. 13, asking for $2,000 in severance pay for constructive dismissal from both the company and the CEO personally. C2C maintained that the worker’s resignation was his own decision and that his assignments were based on his qualifications.
Several months later, the worker and the CEO exchanged emails discussing several topics, including the fact that the worker had sleep apnea and it raised “red flags” about him operating a vehicle. The worker then launched a human rights claim alleging discrimination, which was active at the time of the Civil Rights Tribunal hearing.
The tribunal found that the CEO was acting as an agent of C2C and not in a personal capacity, and there was no evidence of fraudulent intent or wrongful direction that would bring individual liability on him.
Constructive dismissal
As for constructive dismissal, the tribunal noted it happens when “an employer unilaterally makes a fundamental or substantial change to an employee’s contract” that breaches a fundamental term of the employment contract, on an objective basis, unless the contract permits such a change. Although there was no written employment contract in this case, the evidence indicated that the worker was hired as both a traffic control person and a lane control technician.
However, the tribunal determined that C2C didn’t fundamentally breach the worker’s employment contract because there was no contractual guarantee of specific hours in either position. Evidence showed that the worker never stopped working as a traffic control person, even when he had stretches of working more as a lane control technician, the tribunal said.
The tribunal also found that the worker’s resignation was voluntary, as he was still being offered work as a traffic control person and had an option to continue working rather than resign. A resignation under such circumstances doesn’t constitute a dismissal, said the tribunal.
The worker’s claim for statutory severance pay was dismissed, as was his request for reimbursement of tribunal fees and dispute-related expenses because he was unsuccessful in his claim and didn’t provide supporting evidence for the expenses.
