Employer wanted to groom replacement for employee near retirement
This instalment of You Make the Call features an employee near retirement who was shifted to another position.
Al Hikel, 66, was a dispatcher for the long-distance trucking division of Cliff’s Towing in Edmonton. He worked briefly for Cliff’s in 1967, then worked for other employers before rejoining Cliff’s in 1991. Much of his job was spent on the phone with drivers and customers.
In November 2008, Cliff’s was sold to a new owner. He kept the staff and policies intact, but he was concerned with the fact the staff was getting advanced in age. In September 2010, Cliff’s began thinking about a succession plan for his position, as it expected Hikel to retire soon. When asked, Hikel said he wanted to work for “another year or so.”
Cliff’s came up with a plan in December 2010 to move Hikel to the company’s safety department and install a long-term replacement dispatcher. This would allow Hikel to mentor the replacement while avoiding a driver position, which he didn’t want to do.
The new assistant safety officer position for Hikel involved ensuring Cliff’s met all safety regulations and training drivers in all divisions. The job description mentioned course work requirements as well. Hikel’s salary and benefits would remain the same.
Hikel didn’t like the idea, as he enjoyed being a dispatcher and was worried about having to take courses at this stage of his working life, as well as the fact he might have to drive to accident scenes around the region at all hours of the night and day.
Cliff’s agreed to waive the course requirements and set regular hours for the new job and Hikel was also told additional employees would be hired to drive to accident scenes, though no time frame for this was given. The company emphasized that 80 per cent of the new job was the same as Hikel’s dispatcher position, except it was for the whole company rather than just the long-distance trucking division.
On Jan. 20, 2011, Hikel formally rejected Cliff’s offer and stated that the company could not unilaterally move him to another position. Hikel indicated that he considered himself dismissed from his position and did not report to work. Cliff’s issued a record of employment on Feb. 4 and Hikel filed a complaint of unjust dismissal.
You Make the Call
Did Cliff’s have the right to move Hikel to a new position?
OR
Was Hikel constructively dismissed?
IF YOU SAID Cliff’s had the right to move Hikel to the new position, you’re right. The adjudicator noted that the employment contract, which was unwritten, didn’t contain any restrictions on the employer’s ability to change Hikel’s duties and responsibilities. The adjudicator found that the new assistant safety officer position was a lateral move. Though Hikel would have had one more “layer of authority” – the safety officer -- between himself and the top executive, this was counterbalanced by the fact he had responsibilities and authority for all of Cliff’s divisions instead of just one. He also would still have access to the top executives as Cliff’s was a relatively small company. As a result, there was no change in status in the new position, said the adjudicator.
The adjudicator also noted there was no change in Hikel’s salary and benefits and this maintained the most important terms of his employment contract.
The adjudicator acknowledged that there were “significant differences in the day-to-day functions” of the new position, but Hikel was familiar with most of the responsibilities from different jobs with Cliff’s. Hikel had only held the dispatcher position for five years, and had worked in other positions over the years.
The adjudicator also said if Hikel had been required to take the course work and driving in the job description, a finding of constructive dismissal would have been more likely. However, since Cliff’s agreed to waive those duties for Hikel, it would make the transition easier.
