Employee didn't agree with new salary but kept working
This instalment of You Make the Call features a contract employee who claimed constructive dismissal after his employer renegotiated his salary.
Kim Boyer was a truck driver in Saskatchewan who owned his own trucking business. In 2006, he was approached by Badger Daylighting, a Calgary-based company that provides hydro-vac excavating services, to operate a hydro-vac truck in the Swift Current area for the company to help develop its business in the region.
Boyer accepted Badger’s job offer and reached an agreement that he would be paid $12,000 per month for the first three months. Because Boyer’s salary would be dependent on how successful operating the truck in Swift Current was and how well he could generate profits, the agreement stipulated there would be a salary review after 90 days.
In August 2006, Badger told Boyer things were not going very well and they would have to discuss a new arrangement. Until they could, however, Badger would still be paid the $12,000 per month in the original agreement.
In October, Boyer’s supervisor told him the current situation wasn’t working and the company needed to make changes. Boyer knew Badger was having financial problems and agreed to discuss a new arrangement. Badger suggested Boyer prepare a proposal for discussion, but it didn’t accept his proposal and made a counter-proposal with a different payment scheme. Badger’s suggestions were written as notes on Boyer’s proposal and returned to him.
Boyer said he didn’t accept the proposal but continued to work for Badger as he felt he didn’t have any other options at that point. Badger’s new pay structure from its counterproposal were put into effect in November 2007 and Boyer worked under this new arrangement. However, he frequently voiced his displeasure over the new arrangement.
In June 2007, Boyer quit his job and began working for a competitor. Badger made him an offer to stay but it didn’t match the competitor’s offer. Boyer then began an action for constructive dismissal, claiming Badger changed a fundamental term of his employment without his consent, leading to his eventual departure.
You Make the Call
Did Badger constructively dismiss Boyer by changing his pay?
OR
Did Boyer accept there would have to be a change to his salary?
If you said Boyer accepted the pay change and there was no constructive dismissal, you’re right. The court agreed the change in pay was an amendment to a fundamental term of Boyer’s employment contract. However, there was no constructive dismissal because Boyer accepted the change.
When Badger rejected Boyer’s proposal and substituted its own, Boyer didn’t provide any written rejection of it. He also was aware the original salary of $12,000 per month dependent on the profits he could generate in Swift Current. Since he knew things weren’t going very well, he wouldn’t have been caught off guard by Badger’s desire to make some changes, the court said.
In addition to not making a formal complaint about the change, Boyer continued working for Badger under the new pay scale for another seven months until he received another job offer.
The court also considered the fact Boyer had only been working for Badger for five months when the terms of the employment contract were changed. The company also raised the issue more than two months before it actually implemented the change.
The court ruled Boyer was not constructively dismissed because he accepted the change to his contract by not objecting to it and continuing to work for the employer.
