Employee had other job offer and was looking to get something before leaving
An Ontario employee was not constructively dismissed when she left for another job after her employer proposed a new assistant and future review of her employment terms, an arbitrator has ruled.
Crystal R. (C.R.), 35, was the manager of a Sirens clothing store in Kitchener, Ont., owned and operated by YM Incorporated. In 2011, she gave notice to the company that she had accepted an offer of employment with a competitor for a higher salary. Sirens responded by offering to match that salary if she stayed with Sirens. she accepted and stayed on to manage the store.
C.R. signed a new employment contract on July 5, 2011, that stipulated a salary of $35,800 plus monthly bonuses and a guarantee that her income would be “a minimum of $45,000 for each year provided you are still employed at YM Incorporated.” The monthly bonuses were payable if she was employed at the end of each month.
In August 2013, C.R. met with the district manager and the vice-president of operations. They indicated the appearance of the store needed improvement and were concerned she wasn’t spending enough time there. C.R. had been leaving at 1 p.m. on Saturdays, but managers were required to work until 6 p.m. She said she couldn’t work more than 40 hours per week – which she was already doing – because of her parental obligations.
Her store had two assistant managers, but one was on maternity leave so the company suggested bringing in an employee who had recently managed another store to serve as an assistant manager and help C.R. However, she felt they were trying to push her out of her job, though she didn’t say anything about it. These feelings were intensified when the vice-president proposed a review of her employment terms in January 2014 and a possible move to the loss prevention department, which wouldn’t involve a reduction of salary.
After the meeting, C.R. consulted a lawyer. She also happened to run into the competitor’s store manager who informed her he had given notice, so she contacted the competitor who offered her a job on Aug. 18.
C.R. sent an email to the vice-president on Aug. 20 that said she considered herself to have been demoted and constructively dismissed with the proposed arrival of the other manager to her store. She demanded termination and severance pay along with a top-up of her salary for the year to $45,000. She gave him until Aug. 26 to respond, though the normal chain of communication would be through the district manager.
On Aug. 21, she accepted the job with the competitor.
The vice-president did not initially see her email as he received a large amount of emails each day. C.R. showed up for work on Aug. 26 and sent an email to the vice-president confirming her view that she was constructively dismissed and “this will be my last day of employment.”
The other employee contacted the district manager, who in turn contacted the vice-president, who hadn’t yet seen C.R.'s original email. The vice-president tried to call her but couldn’t reach her. He finally read the Aug. 20 email and replied to it saying he wanted her to stay at Sirens and he had stopped the transfer of the other manager. He also said she could choose her own assistant manager and asked her to contact him, which she didn’t.
She started the new job on Sept. 1 with a higher salary. On Sept. 3, YM Incorporated sent her a letter confirming she had left her job and it wanted her back under the same terms of employment. If she didn’t return, YM would consider her to have abandoned her position, the letter concluded. C.R. didn’t respond to the letter and filed a claim for wrongful dismissal damages.
The arbitrator found C.R.'s fear she was being pushed out of her position as store manager was unfounded. The filling of an assistant manager position to cover a maternity leave was not a fundamental change in employment, and there was no change to her pay or any suggestion by the company there would be, said the arbitrator.
“The employer’s announcement of a future review of the employee’s terms of employment did not amount to a constructive dismissal,” said the arbitrator. “There had been no fundamental change nor any specific change at the time when (C.R.) alleges she was constructively dismissed. Nor had any specific change been imposed with an effective date in the future.”
The arbitrator found C.R. was concerned about her future income so she found another job and sent a demand for severance pay to see if she could get more money out of her departure from Sirens. The decision to leave was “entirely of her own volition” and therefore YM Incorporated owed her no notice or severance pay, said the arbitrator.
