If I give proper notice, will I lose my commission?

THE QUESTION

I work in sales and achieved my first-quarter target. In order to be paid my commission, I must be employed at my company when commission is paid out. For me, that is the 15th of the month. I have plans to resign as I am going back to school in September and wish to travel this summer. I'm participating in a program with set dates, so my flight out of Canada must be on the 16th. Should I resign on the 15th and essentially leave that day, thereby guaranteeing that I receive my commission? Or do I give the typical two weeks' notice, taking the risk that my company will not pay me. They have been known to just walk people out the door.

THE ANSWER

If you provide fair notice of your resignation, and you are immediately walked out the door, you are still technically employed until the end of the resignation notice period you provided. Therefore, if commissions and salary are due during that period of time, your employer cannot legally avoid paying you by demanding that you leave early.

There are three common exceptions:

If you resign to work for a competitor, your employer can require you to immediately leave and, depending on what your contract says and what role you occupied, it may not have to pay you.

If, during your resignation notice period, you slack off or fail to properly perform your job, you can be walked out.

If you provide more notice of your resignation than is reasonably required or set out in your contract (for example, giving six months' notice), then your employer can reject it and demand that you leave when they say it is fair.

THE QUESTION

I have been given an ultimatum at work. I have been told that I must assume the responsibilities of a colleague, over and above my own. I have not been offered any extra pay for this extra work. I am wondering whether this a constructive dismissal case.

THE ANSWER

Possibly. More work for the same pay is equal to less pay and, depending on the size of the pay cut (or, in your case, how much more work you have to perform), it can be a constructive dismissal.

Your job cannot be changed in a fundamental way without your consent. A pay cut is one example. A demotion is another. Otherwise, you can reject the change, consider yourself dismissed and, in some situations, you can leave and sue for damages while you look for another job. This is the premise of a constructive dismissal. The keys are that the changes to your job are serious and not minor, the changes are adverse to you, and the new working conditions will objectively be humiliating, so that leaving is a reasonable choice.

I am aware of one case where more work for the same pay was a constructive dismissal but a single precedent does not set the standard. The amount of extra work you have to perform and whether this is temporary or permanent will be conclusive.

Daniel A. Lublin is a partner at Whitten & Lublin, representing both employers and employees in workplace legal disputes.

E-mail: Dan@canadaemploymentlawyer.com

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