Sobeys manager felt 2 offers after restructuring were demotions but court said one was reasonable
A Nova Scotia employer that eliminated a long-time employee’s position and offered her a different job at another location did not constructively dismiss her, the Nova Scotia Supreme Court has ruled.
Debbie Gillis, 47, joined grocery store chain Sobeys as a store cashier when she was a teenager and worked her way up the ladder over the next 28 years, eventually becoming a food experience manager, part of the marketing department at the Sobeys head office in Stellarton, N.S., in 2003. She didn’t have any disciplinary issues during her tenure and she received several positive performance appraisals.
In 2009, the vice-president of marketing asked the department to restructure to increase efficiency and meet the 2010 marketing budget, with the stipulations there was to be no negative impact on existing employees. The management team presented a proposal in February 2009 that didn’t affect Gillis’ position.
Long-time employee presented with choice after restructuring
However, on March 30, 2009, the vice-president of marketing and the vice-president of HR met with Gillis and told her that her position had been eliminated in the restructuring but they wanted her to stay with Sobeys. Gillis was offered a choice of two positions: an assistant store manager at a store in Truro, N.S., or a demo co-ordinator at the head office. Both positions had lower salaries but Sobeys offered a one-time lump sum payment to make up the salary difference in her first year. Her vacation and benefits would stay the same.
Sobeys indicated it wanted to make the organizational changes as soon as possible and asked for Gillis’ decision within two days. It also raised concerns with her performance in her role as a food experience manager that she would need to address, which were “notwithstanding the organizational change” or the alternative job offers, but which she would have to improve or face discipline.
Gillis was caught off-guard by the meeting and felt “devastated, shocked and very angry.” She came to work the next day for a short time but eventually went home and didn’t return. On the deadline Sobeys gave her, she wrote to the company that the short deadline to make such an important decision about her career was “unfair and unreasonable” considering her length of service and value to the company. She asked for an extension to April 7 and Sobeys agreed.
Gillis was hesitant about the assistant store manager position in Truro because she had a child and she didn’t think she could manage the hours. She spoke to her babysitter about expanding the hours but it wasn’t feasible. She didn’t explore other child-care options because she felt the position was a demotion anyway. She didn’t consider the demo co-ordinator position because it was even more of a demotion and a significant drop in pay. She felt both positions were demotions that would be “humiliating and embarrassing.”
A few days later, Sobeys received a letter from Gillis’ lawyer and Sobeys placed her on unpaid leave. It replied that it preferred to discuss employment matters with her directly and reiterated the deadline for her decision. It stated that if she did not return to work, it would consider this a resignation and she would be given a one-time payment of $23,104, equal to the salary-difference payment for the assistant store manager position. Gillis didn’t respond and Sobeys paid the severance. Gillis sued for constructive dismissal.
The court found Gillis’ job was eliminated in a legitimate restructuring plan for business reasons, so Sobeys was within its rights. However, it found that one of the positions it offered her, the demo co-ordinator, was a demotion and had a significant drop in salary, of about half.
However, the assistant store manager position was not a demotion, said the court, as it involved more responsibilities, more employees and “a competitive income.” In addition, the lump sum payment would keep her salary at the same level for one year following her transfer. There was no reason for Gillis to feel embarrassed and humiliated by taking this job because it wasn’t unusual for Sobeys employees to move from head office to store positions and there would be opportunity to become a full manager quickly. There was also no evidence she would experience hostility in moving to the Truro store, said the court.
“If Ms. Gillis had been able to put aside her emotional responses, she should have realized this would not be a ‘step back’,” said the court.
The court also found Gillis could also not use child care as a reason to refuse the job. Sobeys often accommodated family needs of its employees and it was likely her hours would not affect her too much. If she had seriously considered the job, then she might have realized there would be some accommodation, said the court. The court also noted Gillis did little to explore alternative child care arrangements.
The court found Sobeys had no intention of terminating Gillis’ employment and wanted to keep the employment relationship going. The assistant manager position it offered her was a reasonable solution following the elimination of her position and did not change the fundamental terms of her long-standing employment. As a result, there was no constructive dismissal.
