Demotion not fundamental breach of contract

In March 1994 Roch Shannon Fraser was hired as the program director for CKRW’s radio station in Whitehorse. His job included overseeing the news department and he reported to the assistant station manager. His compensation for this management position was an annual salary of $50,000 plus a six-passenger vehicle, a fully paid dental plan and six weeks of annual vacation. In accepting the job, Mr. Fraser moved his family from Abbotsford, B.C., to Whitehorse.

Within three weeks of commencing his employment, Mr. Fraser assigned himself to the morning-show host position. To do so he reassigned the then current morning host to the weekend morning-show host position. The transferred employee was unhappy with this move and left his employment at CKRW shortly thereafter.

In May 1995 a decision was made to eliminate the program director position. In the letter notifying him of this decision, he was offered a DJ position at a salary of $40,000 per annum plus two weeks of annual vacation. The general manager, Satman Rai, would assign his work. Mr. Fraser accepted this new position. He negotiated that the loss of his vehicle privilege would be delayed until the end of July and he would retain his dental insurance by paying half of the premium.

Although Mr. Fraser was devastated by this demotion, he accepted the new position because there were no similar broadcasting positions available in Whitehorse and he did not want to uproot his children from school or his wife from her employment.

To compensate for the loss of salary Mr. Fraser was also offered a position as commission salesman which he accepted. From 1996 to 1998 he earned an additional $20,000 annual income.

During this time Mr. Fraser continued as the co-host of the morning show with Wayne Klinck. The hosts of the morning show worked from 7:00 a.m. to 2:00 p.m. (on the air until 10:00 a.m.). Mr. Klinck left the morning show in June 1999. Mr. Fraser remained as the sole host until October when Keith Ellert was brought in to co-host the morning show with Mr. Fraser.

After six weeks Mr. Rai felt that there was no chemistry between Mr. Fraser and Mr. Ellert. On Nov. 18, 1998, Mr. Fraser was informed by a memo from Mr. Rai that he was being moved from the morning to the midday show. His hours of work were changed to 9:00 a.m. to 6:00 p.m. with one hour for lunch. This change involved one more hour of broadcast time. Mr. Fraser believed that he would lose the weekend work at offsite or remote locations as this work usually went to the morning show host.

Mr. Fraser was flabbergasted by the memo. He considered the midday announcer position to be a lesser position and a clear demotion. He considered himself fired from the morning show position. He left the station and his job without any discussion with his employer.

As a result of this change in position, Mr. Fraser brought an action against Klondike Broadcasting Company Limited (CKRW) alleging that he had been constructively dismissed when his broadcast shift was changed from the morning show to the midday show. The matter before the Court was whether CKRW had made a fundamental change to Mr. Fraser’s terms of employment that entitled him to treat the contract of employment as terminated.

There was a clear difference of opinion between Mr. Rai and Mr. Fraser about the importance of the morning-show host position. In Mr. Fraser’s opinion, the morning-show host position was the key broadcasting position at the radio station. It required more skills and personality to entertain listeners between 6:00 a.m. and 10:00 a.m. each weekday. On the other hand, Mr. Rai was of the opinion that one shift was not more important than any other one. In his view Mr. Fraser was a valued employee who would perform better on the midday show.

Expert evidence was given at trial by Brian Antonson, who had extensive experience in the radio business and as an instructor and associate dean of the Broadcast and Media Communication Department of the British Columbia Institute of Technology. In his view the morning show was key to the success of a radio station. It had the highest number of listeners. In his opinion a change from the morning-show host position to the midday show would be a demotion in status, prestige and importance. The Court accepted the evidence of Mr. Antonson.

The Court relied on Mr. Fraser’s letter of employment of May 1995, which stated that his work would be assigned by the general manager. There was no mention of the morning show host position. The general manager had the right to assign the employee, which suggests discretion and flexibility.

The Court held that the change in assignment was permitted by the contract and did not constitute a fundamental breach. The action was dismissed.

For more information:

Fraser v. Klondike Broadcasting Co., 2002 YKSC 24.

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