Am I entitled to severance if my hours are reduced?

THE QUESTION

I have worked as a technician for a medical company for more than 25 years. Over the past three years, my hours have been steadily reduced and I now get maybe 10 hours every couple of weeks. When I ask, they say the work will pick up soon. My total years worked have been a mix of full- and part-time periods. I am frustrated because, had they laid me off while I was full time I could have applied for employment insurance benefits. Am I entitled to severance?

THE FIRST ANSWER

George Cottrelle

Partner, Keel Cottrelle LLP

Your entitlement to a severance package depends upon whether your employment has been constructively terminated by your employer, as a result of the reduction in your work hours, due to your employer's lack of work. Constructive dismissal requires a unilateral and substantive change to an essential term of your employment.

Constructive dismissal depends upon the facts of each case, and presents a serious challenge for employees. If an employee leaves their employment alleging constructive dismissal, and their claim is unsuccessful, then the employee will have resigned their position, without entitlement to a termination payment. This is a significant consideration for you, given the length of your employment.

Your employment has included periods of part-time work, which you have accepted, so that alone would not give rise to a claim for constructive dismissal. However, if you are working substantially fewer hours than under your prior part-time arrangements, you may have a claim.

We are not clear if you have communicated your objections, but constructive dismissal must be raised within a reasonable period. Given that your reduction in hours occurred over a three-year period, there may be an argument that you accepted the change and are precluded from raising the matter.

To assert constructive dismissal, you must expressly reject the change, and are likely required to continue in your job, to mitigate your damages, while asserting your claim. Given your 25 years of employment, and the uncertainty of your case, this would be the prudent course of action.

THE SECOND ANSWER

Colleen Clarke

Workplace coach, Colleen Clarke & Associates

Waiting for the other shoe to drop is common behaviour when workplace practices change over time.

Each party waits for the other to make the next move. The cutbacks in your hours occurred gradually and you accepted them, now the hours are few and you are highly underemployed.

If you need to work, waiting for them to dismiss you altogether is holding you back from career satisfaction and moving forward with your life.

Apply to other companies for 25- to 30-hours/week positions and you could gradually ease this company out of your life, albeit without a severance. Or you can get another full-time job and quit.

With such long service it is very unfortunate to have to leave under such duress, but it is important to take care of yourself at this point and move forward psychologically and physically.

The writing has been on the wall for three years. Now, it is your move.