Was this restaurant worker constructively dismissed?

Read the facts of this case and decide — did the restaurant's actions amount to constructive dismissal?

The British Columbia Court of Appeal provided a handy definition of constructive dismissal in 1998 in Farquhar v. Butler Brothers Supplies Ltd. The court said constructive dismissal “occurs when the employer commits either a present breach or an anticipatory breach of a fundamental term of a contract of employment, thereby giving the employee a right, but not an obligation, to treat the employment contract as being at an end.”

Below is a case involving a restaurant worker in Manitoba. Was she constructively dismissed? You make the call.

Doreen Wiens started working for the Dakota Village Motor Hotel Ltd. in Winnipeg in 1982. She started out as a waitress but at the time her employment was terminated she held the position of restaurant supervisor.

Her duties included taking reservations, seating customers, documenting money receipts, scheduling staff, interaction with the cooks with respect to the menus, hiring and firing staff, conducting staff meetings, training and general supervision. Wiens worked a fixed daily shift and was salaried.

On Nov. 10, 2004, Randy Leech, the owner of the Dakota Hotel, advised Wiens in writing that the position of restaurant supervisor was being eliminated and the responsibilities would be transferred to the director of operations.

Leech offered Wiens a restaurant cashier/hostess position. The hours were not fixed and would require a combination of days, evenings and weekends. The wage would be $9.50 an hour, about 10 per cent less than she was previously earning.

Wiens talked it over with her husband, decided the new position would be a demotion and consequently left her job.

You make the call

•Did the changes by the Dakota Village Motor Hotel amount to a constructive dismissal?

If you said yes, you’re correct. The Manitoba Court of Queen’s Bench ruled the changes to her employment were constructive dismissal.

“The new position was sufficiently different with respect to the duties to be performed and remuneration so as to constitute a constructive dismissal,” said Justice Jewers.

The employer in this case conceded it was a constructive dismissal, but argued Wiens should have taken the new position because the job description was similar and any reduction in pay could be compensated by a damage award. In short, she had a duty to take the job in the interim to mitigate her damages. But the court disagreed.

“She was right to regard it as a demotion,” said Justice Jewers. “While it is true that many of the duties were the same, nevertheless the very important duties of supervision and hiring and dismissal which are at the core of a managerial position were removed.”

Plus, it was not just simply a reduction of wages or salary — her whole pattern of employment stood to be changed from a certain and fixed work schedule to an uncertain and varied one, the court said.

“(Wiens) indicated, and I accept, that she would have felt uncomfortable working with co-employees whom she had previously supervised and that she would not have been particularly happy in being placed in this position and, of course, the new work schedule had the potential to cause uncertainty and disruption in her personal life,” said Justice Jewers.

Taking into account the fact she was 57, the fact she had been with the company for 22 years and the fact similar positions are relatively abundant, the court fixed the notice period at 15 months including dental and medical benefits for a total of $26,965.54.

For more information see:

Wiens v. DVMH Holdings Ltd., 2005 CarswellMan 447 (Man. Q.B.)

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