Sobey’s employee quit or forced out?

Seventeen-year employee's duties were decreased by centralization; didn't want to relocate

This instalment of You Make the Call looks at an employee’s claim of constructive dismissal during restructuring.

Deborah Burns, 55, worked for Sobey’s, an operator of convenience and grocery stores, for 17 years. She started as a junior accounting clerk and worked her way up through supervisory and managerial positions. She worked in the company’s office in Middleton, N.S., except for 1991 to 1998 when she travelled from store to store as a retail advisor and counsellor and reported to a manager in Stellarton, N.S. By August 2001 she worked in the Middleton office’s computer area, doing pricing of products and troubleshooting.

In November 2003, Burns was told her pricing duties, which made up one-half of her work, would being taken away due to a centralization of the process. Sobey’s management told her there would be more work for her in Stellarton, but Burns didn’t want to relocate. On Nov. 26, Sobey’s told Burns her position was being eliminated and she would be offered a position in the computer room that would give her 20 hours per week and the remaining hours would be filled with “whatever.” Her salary and benefits would remain the same.

Burns asked for a job description for the position. Sobey’s described some testing duties, which she considered “clerical or menial” tasks and told her to think about it and give an answer the next day. She asked if there would be a severance package if she chose not to take the new job. Sobey’s said there would be but it would be affected by the fact it offered her two positions at the same salary but she refused.

The following morning Burns met with the vice-president of human resources, gave him her office security card and left the office without further discussion. The vice-president of HR was surprised by her reactions and felt that ended the discussion. The next day Sobey’s received a letter from her lawyer asking for information on the job description and possible severance in order for her to assess the situation.

Sobey’s considered Burns’ refusal of two positions as well as turning in the security card, leaving the office and seeking legal advice when asked for her decision as a resignation.
You Make the Call

Did Burns resign from Sobey’s by refusing the job offers and leaving without further discussion?
Was Burns constructively dismissed?

If you said Burns was constructively dismissed, you’re right. The court found after being informed of the elimination of her position, Burns was only offered the job in the computer room, which consisted of 20 hours per week of tasks she considered menial and 20 hours of unspecified duties. After 17 years with the company and holding supervisory positions, this was a fundamental change in her employment.

The court also found Sobey’s didn’t officially offer her a position in Stellarton, it just said there would be more work for her there. Therefore, the only job actually offered to her was the one without a proper description.

“On all previous occasions that Ms. Burns had changed her position with Sobey’s, a job description was given and she was afforded the option of accepting the new position or staying where she was,” the court said. “The procedure followed by (Sobey’s) on Nov. 26 was itself a significant change in the (implied) terms of the employment contract.”

At no point did Burns actually say she quit, the court said, and Sobey’s should have considered the state of mind she would be in when asked to make a decision the morning after being told of the termination of her position. She asked about severance to help her evaluate her situation and she made it clear in her lawyers’ letter she wanted more information.

The court awarded Burns 16 months’ notice, equal to $54,135.52.

For more information see:

Burns v. Sobeys Group Inc., 2007 CarswellNS 549 (N.S. S.C.).

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