Art gallery worker awarded 12-months notice after hours slashed

Perrett v. Harrison Galleries, 2001 CarswellBC 3133 (B.C.S.C.)

Perrett had sold artistic works for Harrison Galleries for eight years when she was constructively dismissed at the age of 67. The B.C. Supreme Court reaffirmed that constructive dismissal of an employee occurs “where an employer unilaterally makes a fundamental or substantial change to an employee’s contract of employment.”

On the facts of this case, the court held that the reduction of her hours of work from four days to two-and-one-half days per week constituted constructive dismissal. The court referred to the fact her pay was based on commission and, therefore, her income would be drastically affected.

In determining the appropriate reasonable-notice period, the court began with the one month for each year of service “rule-of-thumb” and then extended that by three months for a notice period of 11 months because of a number of factors.

However it should be noted that in a recent decision the Ontario Court of Appeal acknowledged that the traditional “rule-of-thumb” was not appropriate even as a starting point for determining notice. The three-month addition to the notice period was based on the unique nature of Perrett’s employment skills, the relatively small market for those skills and a finding that her age would make finding new employment difficult.

The reasonable-notice period was then extended by one month for a total of 12-months’ notice due to various aggravating factors.

The factors included the four-month delay by the defendant in providing a record of employment, the employer’s decision to notify Perrett of the changes to her hours by way of letter instead of personally despite eight years of service and its refusal to discuss the unilateral changes even after her request to do so. The plaintiff was awarded 12-months’ pay in lieu of notice plus interest and costs.

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