'Communication is key to implement changes to an employee's employment, even if it's minor,' says lawyer offering tips for HR
“Employers can make minor changes to the terms of their employees’ employment, so moving someone across the street is onside as long as it's not a substantial change.”
So says Mallory Adams, an employment lawyer at McInnes Cooper in Halifax, after the Nova Scotia Labour Board dismissed a worker’s appeal of a decision that he wasn’t dismissed by his employer when he was moved to another location nearby.
The worker was a mechanic for Mike Allen Auto Group, a company that owned six automobile dealerships in and around Amherst, NS. He became an employee of the Auto Group in 1999 when the company purchased a Chrysler dealership at which he was working. In 2022, the worker moved to a Kia dealership owned by the Auto Group called Atlantic Kia.
In February 2023, the worker requested accommodation due to health issues he was experiencing, including a reduction in workdays from five to three per week and limits on heavy lifting to no more than 60 pounds. Atlantic Kia granted the accommodations, but the company subsequently faced pressure from Kia Canada to meet quotas it had for warranty service.
On September 26, the manager at the Atlantic Kia informed the worker that the Auto Group wanted to transfer him to another dealership called Albion, which was located across the street. The worker expressed concerns about working at the other dealership and whether his restrictions on lifting would be maintained, but the manager assured him that he would continue to be accommodated at the Albion dealership. She also contacted the Albion manager, who said that the worker wouldn’t have to do any heavy lifting as the younger employees could take care of it.
Suggested relocation
The manager said that, due to the pressure from Kia to meet quotas, the worker had a choice of either working five days per week at Atlantic Kia or move to Albion across the street. The worker left the meeting with the impression that the matter would be discussed further.
The worker was off for one week, and when he arrived for work at Atlantic Kia on Oct. 2, he discovered that his workstation was occupied by a new mechanic and his tool chest had been moved. Feeling confused and humiliated, he went to the manager and asked if his services were no longer required.
According to the worker, he was told to go across the street and ask for a job. The manager’s version of events was that she offered to walk him over to the Albion dealership and introduce him to the manager there, but he declined and said he would contact the Albion manager himself. He then left and didn’t return.
The worker made an employment standards complaint alleging that he was dismissed without cause or, alternatively, the Auto Group constructively dismissed him by unilaterally changing his position.
The Director of Labour Standards found that the Auto Group didn’t dismiss the worker and, alternatively, if the worker was dismissed the company offered him a comparable position. The worker appealed to the Labour Board.
No confirmation of transfer
The board found that the Auto Group didn’t confirm the transfer to Albion at any time, as the company didn’t provide any timing or discussion of alternative positions in response to the worker’s concerns. In addition, the worker didn’t do any follow-up of his own after the Sept. 26 meeting, contributing to the confusion when he arrived for work on Oct. 2, the board said.
The board also found that the Auto Group “did not appreciate the significance” of the worker’s workstation being taken over by someone else after being off for a week following the conversation with the manager, which was “the equivalent of an office worker arriving to their office and having their name removed from the door, their personal effects gathered in a box and someone seated at their desk,” said the board.
The board determined that the Auto Group didn’t properly or professionally communicate its intention to move the worker to a new position at the Albion dealership. However, this didn’t amount to a without-cause dismissal or a constructive dismissal because the worker knew, or ought to have known, that there was a comparable job for him across the street based on the Sept. 26 meeting, the board said.
Despite the lack of constructive dismissal, the company did a poor job communicating the transfer to the worker, says Adams.
“The [company] wasn’t clearly outlining the process of the transfer, not being more definitive in the details, and not addressing the worker’s concerns with respect to the transfer and whether he would be accommodated at the new location,” she says. “And then just the simple fact of the company putting a new mechanic in the employee’s workstation and the worker arriving to see that without any further discussion – [the Auto Group] likely hired the mechanic before informing the worker about the transfer – these were key missteps that the company made.”
Comparable position
The board noted that the Atlantic Kia dealership was faced with pressure to meet its warranty work quota, so the worker’s workstation had to be used five days a week to meet that standard. Since the Auto Group operated multiple dealerships with work that the worker could perform, there was a comparable position available for the worker, the board said, adding that the dealership across the street was a reasonable location to which the worker could be transferred.
The board noted that the Nova Scotia Labour Standards Code permits employers to unilaterally transfer employees to other reasonable employment - new positions that are equivalent to their existing ones or where the terms of employment are essentially the same. That was the case here, the board said, adding that the worker would receive similar accommodation at the Albion dealership and the effects of the change in location, across the street, were negligible.
The worker raised concerns about differences in the hourly pay structure and the fact that older vehicles at Albion could make jobs longer and more difficult, but the board found no evidence that these factors would substantially alter the essential terms of employment or affect the worker’s income.
The board found that the transfer offer satisfied the requirements under the code and, although the company’s communication was inadequate, it didn’t amount to dismissal, constructive or otherwise. The worker’s complaint was dismissed.
No constructive dismissal
The worker wasn’t able to show a unilateral change that substantially altered the fundamental terms of the employment contract, as established by the Supreme Court of Canada in its test for constructive dismissal, says Adams.
“The change was a minor one and the company didn’t substantially alter the terms of the contract,” she says. “The move was to the location just across the street and, in the alternative, there was a reasonable or substantially similar position offered with the accommodation still being met.”
However, any change in employment should involve clear and considerate communication with the employees involved, adds Adams.
“Communication is key for employers when wanting to implement changes to an employee's employment, even if it's minor and not a constructive dismissal,” she says. “You want to clearly set out why, when, how it's going to take place, and leave space to answer employee questions, so that all the parties understand what's going to happen and there's no open question about whether or not this change is actually taking place.”
