THE QUESTION
My employer recently revised their vacation policy and reduced my vacation time to two weeks from three. They said it was more aligned with my experience and time working there. This seems unfair to me, as my initial work contract stated three weeks of vacation. Is this legal? What options do I have to retain my three weeks of vacation?
THE FIRST ANSWER
Susanna Quail, partner, Allevato Quail & Roy, Vancouver
It is likely that a unilateral reduction of vacation time from three to two weeks would amount to constructive dismissal. Constructive dismissal arises when an employer changes a fundamental term of the employment relationship without the employee’s agreement. Unfortunately, your legal options are limited. Unless you have five years’ service, in which case this reduction may fall below legislated minimum employment standards, there isn’t any legal avenue you can pursue to get your vacation entitlement back while still working for this employer.
To claim constructive dismissal, you have to quit your job. The remedy for constructive dismissal is severance pay. If you haven’t been at this job for very long, your severance pay is likely to be limited (depending on various factors including the terms of your written employment contract, if you have one). If you are going to quit because of this and seek severance pay, you should do it before too long: if an employee keeps working for a long time after the change is imposed, a court may view this as tacitly accepting the changed employment terms and deny a claim for constructive dismissal.
You would be in a much stronger position as a unionized employee, as you could enforce the terms of your contract while remaining employed. Non-unionized employees are rarely able to enforce employment contract terms while remaining employed. This is one of many lesser-known benefits of organizing a union in your workplace. Contact your provincial or territorial labour federation for information about joining a union. An employer who will unilaterally reduce your vacation pay is likely to treat you and your coworkers unfairly in other ways, too – organizing a union will serve you well.
THE SECOND ANSWER
Jahaan Premji, associate, Carbert Waite, Calgary
The first step is to check your employment contract to see if you have agreed to any terms related to the change in vacation entitlement.
The next step would be to check your provincial employment standards legislation. Employment standards legislation sets the minimum standard for vacation entitlement in each province. Your employer cannot go below the prescribed minimum standard. You should be cautious about whether the change in vacation days to two weeks from three brings you below your minimum entitlement. In Alberta for example, if you have been working for five consecutive years with your employer, you are legally entitled to a minimum of three weeks.
Your employer can make changes to your employment contract so long as they provide you with some type of value (referred to as “valid consideration”) and notice. Valid consideration could look like an increase in pay, additional sick days or a bonus payment.
It is unlikely that a change to two weeks vacation would amount to constructive dismissal (arising from a “substantial change” to the contract), however, it would depend on the particulars of the situation. It may be worth it to consult with a lawyer to see if you have a possible constructive dismissal claim.
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