Employee’s constructive dismissal accusation too hasty

Reduction of responsibilities Vancouver city employee had taken on unofficially weren’t part of regular job duties

A restructuring of Vancouver city staff that resulted in some unofficial duties being taken away from a manager did not fundamentally change the manager’s employment contract, the British Columbia Supreme Court has ruled.

Carlene Robbins was an employee of the City of Vancouver hired in 1975. In 2007, she was appointed to the position of manager, property use inspection. She had 29 employees reporting to her in the property use inspection branch.

In April 2000, the assistant director of by-law compliance was also put in charge of the property use inspection and by-law administration branches. At the time, Robbins was the manager, records services and by-law administration, so she began reporting to this assistant director for by-law administration maters while reporting to another director for records services.

Robbins developed a close working relationship with the assistant director, who delegated some of her by-law enforcement work to Robbins. In particular, Robbins was involved in working with police and fire officials in efforts to close down marijuana grow-ops. Robbins wrote applications for funds to hire staff for such efforts and helped prepare a new by-law for dealing with such properties.

In 2007, Robbins applied for and won the position of manager, property use inspection branch. The position dealt with licensing, by-laws, policies and procedures dealing with property use in Vancouver. Co-ordinated enforcement — with which Robbins had been heavily involved in her previous position — was not considered a focus or primary function in her new job, which was at a higher pay grade.

In her new position, Robbins dealt with problem property situations which rarely became bad enough to warrant serious intervention or enforcement co-ordination by the city, such as the grow-ops she dealt with in her old job. However, Robbins retained some of her former responsibilities because she enjoyed the work and working with the assistant director for by-law administration, of which her new boss, the director of licence and inspections, wasn’t aware. Robbins later explained that her replacement as manager of by-law administration wasn’t familiar with enforcement orders, so she continued to prepare as part of a “transition phase.” Robbins also described her job title as “manager, property use inspection branch and co-ordinated enforcement,” which wasn’t actually her new job title.

Restructuring following executive’s retirement

In May 2010, the assistant director for by-law administration retired and the city decided to eliminate the position and reorganize. Robbins reported directly to the director of licence and inspections, but in July a new assistant director position was created to head the inspection services. Robbins’ property use department would be part of that division.

Robbins was upset, because she had expected the assistant director of by-law administration would be offered to her rather than be eliminated. She also complained she would be reporting to someone who didn’t know anything about co-ordinated enforcement, but her boss told her the new assistant director would learn and she should continue doing what she always did. Robbins felt her old boss’s job hadn’t really been eliminated, but rather renamed into the new assistant director position to keep her from getting it.

After a tragic fire at a problem property, the city created a strategic enforcement committee to look at properties with serious compliance concerns. Robbins attended the committee’s first meeting, but she felt the city manager didn’t take her suggestions seriously. When asked to arrange for co-ordinated inspections, Robbins expressed concern about her workload.

Manager wanted to hang on to her unofficial responsibilities

In January 2011, a new assistant director for inspection services was hired. Robbins was removed from the committee in favour of the new assistant director and co-ordinated enforcement duties were shifted to him as part of the section services. Robbins expressed frustration with what she perceived as a lack of support from management on co-ordinated enforcement duties she had been doing since the assistant director for by-law administration had retired. She also complained that shifting the work to the new assistant director was taking away “80 per cent” of her work.

Robbins was told co-ordinated enforcement shouldn’t be taking so much of her time, as it wasn’t part of her core duties. She felt “devastated and embarrassed” because she felt her status with the city was reduced.

The next business day, a meeting with all the managers of the inspection branches was held. Robbins sat back and didn’t participate, and afterwards she told her staff she was going to take vacation time because she didn’t know what to do.

A week later, Robbins was back and received an email asking about the procedure for dealing with an invoice from a security company. Robbins replied that it was part of co-ordinated reinforcement and she no longer did that.

On Jan. 26, 2011, Robbins gave her boss a letter from her lawyer stating her position that she was constructively dismissed by “unilateral and substantial changes to the essential terms” of her employment contract. Her boss tried to explain the changes to her duties were limited, she would still be participating in some co-ordinated reinforcement and her pay would be the same, but Robbins kept interrupting, arguing co-ordinated reinforcement was her main area and they were taking away all her work. She said her phone and parking pass were on her desk and she was going to say good-bye to her staff.

The city treated her departure as a resignation.

The court found that Robbins’ role in co-ordinated reinforcement gradually increased once her assistant director became responsible for it in 2000 and by 2010 it was her primary function. However, there was no fundamental change in the position she held — manager, property use inspection — and officially co-ordinated enforcement was not the primary function of her position. Though Robbins claimed she was spending 80 per cent of her time doing co-ordinated enforcement, the court wasn’t persuaded she was only spending 20 per cent of her time managing the property use inspection branch.

The court also found Robbins’ boss was telling the truth when he tried to tell her she would still be involved in co-ordinated enforcement, and just the high-level files would be handled by the strategic enforcement committee. However, Robbins refused to listen.

“Ms. Robbins acted precipitously by leaving her employment without waiting to see how the restructuring played out and the role she would continue to play in co-ordinated reinforcement,” said the court.

The court found that the restructuring would have resulted in co-ordinated reinforcement taking up less of Robbins’ time, but the changes did not constitute a fundamental change in her position or a breach of the employment contract. Robbins’ claim for constructive dismissal was dismissed.

For more information see:

Robbins v. Vancouver (City), 2014 CarswellBC 1363 (B.C. S.C.).

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