The charade of bumping an employee into a position with little
more than a title is a recipe for a lawsuit.
Harry Jodoin, Nissan Canada's senior manager, retail sales
and sponsorship, managed the company's advertising and dealer
recognition programs, as well as sponsorship programs for the
CFL and for Cirque de Soleil, and had a multi-million-dollar budget
and two full-time staff. During his 10 years with the company,
Jodoin had been rewarded with a string of promotions which, coupled
with approbation as to his performance, lead him to believe his
career would continue to ascend.
Three days before Christmas, Jodoin was summoned to a meeting
and told he was being moved into the newly minted role of senior
manager of its vehicle participation program reporting to Jean Luc
Lemire. His job would be to promote vehicle sales to staff.
Jodoin suspected something was amiss because he had a testy
history with Lemire from years earlier when both worked in Quebec.
His fears were quickly realized. In his new job he had no budget,
no staff and no direct contact with dealers as much of the work was
done online. He was unable to obtain a job description or a list of
his long-term goals. He was also moved out of his office into a
cubicle with considerable employee traffic and little privacy.
Jodoin's repeated requests for a concrete job plan and
appropriate office space were ignored. What he did learn was that
his successor in his previous role was Lemire's favoured
candidate. Convinced Lemire had manufactured a position to get him
out of that role, Jodoin quit and sued for constructive
Nissan took the case all the way to trial. It put Lemire on the
stand to support its defence that Jodoin had been laterally
transferred to a legitimate, important job and that he lacked any
grounds to be awarded damages.
Madame Justice Susan Greer of the Ontario Superior Court of
Justice disbelieved Lemire's testimony. The clincher, she said,
that the reassignment was contrived was the revelation Jodoin's
successor spent only half his working time on this supposedly
important role. She found that Jodoin had been unfairly demoted
from a successful senior manager job into a marginal one stripped
of office management functions, budget and position description,
and he was awarded hefty damages for constructive dismissal.
What Nissan Canada hoped to achieve either through its behaviour
toward Jodoin or (its quite separate decision of) allowing this
case to go to trial with the consequent notoriety remains unclear.
But other employers can derive meaningful lessons in managing staff
re-assignments and reducing litigation risks:
Strengthen the employment agreement. Many
employers have no contracts in place; others, have weakly worded
templates. The effect is to default to the courts the ability to
circumscribe the employer's powers and trigger constructive
dismissal lawsuits. Introduce wording that provides the employer
the ability to re-assign staff to meet its changing requirements,
even if that would otherwise be a constructive dismissal.
Be responsive. The court was critical of the
employer ignoring Jodoin's requests for details about his
Maintain the employee's dignity. If an
employer is required to re-assign staff, ensure that not only are
the compensation and title equivalent but that the employee's
public status, including office privileges, remain unaffected.
Screen the bona fides of re-assignments. A
robust Human Resources would have challenged a decision to
orchestrate an employee's removal from a position into the
shell of one.
Keep careful records of your decision-making
process. The absence of documentation on critical issues
undercut Nissan's credibility and helped tilt the court in
This article originally appeared in the Financial Post.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).