Thread regarding Imperial Oil Limited layoffs

Object to Moving Soon or Forfeit Right to CD Claim

Google gemini helped me realize that if you are considering a constructive dismissal claim you likely want to consider working under protest within 10-15 days from the announcement. See below for more details. But if you don’t want to forfeit you right to a constructive dismissal claim, you must notify the company that “you considers the unilateral relocation a fundamental breach of the employment contract amounting to constructive dismissal and that the employee reserves the right to initiate legal action for wrongful dismissal damages”. But don’t take my word (I’m not a lawyer), hire a lawyer and look into it yourself if are seriously considering this route. Make sure you make it to section 3.2 below.

Gemini Output:
3.1 The Doctrine of Condonation and the Critical Timeline
The doctrine of condonation remains the primary procedural hazard for the employee. To qualify for termination pay related to constructive dismissal, the employee must resign "soon after a change in employment conditions". Failure to act promptly is interpreted as acceptance of the new conditions, thereby forfeiting the claim. 
As detailed in Section I.2, the Alberta Court of Appeal's ruling in Kosteckyj v. Paramount Resources requires the employee to act within a window of approximately ten to fifteen days to register an objection and make a determination regarding resignation. Missing this window is likely to be fatal to the claim. 
3.2 Executing the Formal Objection: The "Work Under Protest" Strategy
Given the strict window for objection, employees often face a dilemma: quit prematurely and risk having no income, or stay and risk condonation. The strategy of "working under protest" offers a mechanism to preserve legal rights while minimizing the duty to mitigate damages (by remaining employed). 
Legal Requirements for "Working Under Protest"
For this strategy to be legally effective in Canada, the protest must be documented rigorously. The employee must unequivocally notify the employer in writing that they do not consent to the change and that their continued presence in the workplace, even under the new conditions, is done specifically to mitigate potential losses and does not constitute acceptance or condonation of the breach. 
Documentation should be explicit and formal, detailing that the employee considers the unilateral relocation a fundamental breach of the employment contract amounting to constructive dismissal and that the employee reserves the right to initiate legal action for wrongful dismissal damages. It is advisable to reissue this formal protest, potentially with every subsequent pay statement, to maintain a continuous, undeniable record of non-acceptance.


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| 2468 views | | 13 replies (last October 6) | Reply
Post ID: @OP+1k6pkwzk4

13 replies (most recent on top)

@mz so what was the approximate severance offered during the last round?

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Post ID: @nd+1k6pkwzk4

@jv performance results do not effect severance amount paid. That is not considered in the calculation. You are overworking something that a straight forward formula based almost entirely and almost always based only on length of service. I’ve done this in previous IOL/xom layoffs myself and have first hand experience being on the inside of this process.

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Post ID: @mz+1k6pkwzk4

@jr the point is that constructive dismissal requires higher severance than a regular dismissal as would be the case of poor performance. The severance being offered is not high enough as this is constructive dismissal for all the people that cannot relocate. And they should be compensated accordingly considering factors like age, job market, skillset, value to company. It should be far more individualized than the 3.3 weeks of salary per year that’s being offered. This is where a lawyer is required to help you get what you deserve from Imperial.

5.1. Common Law Wrongful Dismissal Damages (Severance Pay)
An employee who successfully argues constructive dismissal due to a forced relocation is entitled to damages equivalent to common law wrongful dismissal. This means the employee is owed severance pay, calculated based on reasonable notice, not just the minimum statutory entitlements found in provincial employment standards acts.
The financial exposure for the employer in these cases is substantial. For non-unionized employees in Ontario and generally across Canada, the recoverable severance pay can reach up to 24 months' pay.
5.1.1. Calculation Methodology: Exhaustive Review of the Bardal Factors
The precise quantum of severance is determined by reviewing the four core factors established in the seminal case, Bardal v. Globe and Mail Ltd. :

  • Age of the Employee: Older employees typically receive longer notice periods because their age often correlates with greater difficulty in securing comparable re-employment.
  • Length of Service: High tenure creates a powerful expectation of stable employment terms. Employees with decades of service (such as the 37 years in Nickles) are entitled to significantly longer notice periods, as a substantial change like a forced relocation constitutes a severe breach of this long-term relationship.
  • Character of Employment: Senior managers, specialized professionals, and executives are generally awarded longer notice periods compared to junior staff, reflecting the complexity of replacing their specialized roles.
  • Availability of Similar Employment: The court considers the market conditions and the time required for the employee, given their experience and qualifications, to find a comparable position.
    In forced relocation cases, the breach itself often compounds the employee’s difficulty in mitigation, thereby increasing the final award. If the relocation forces the employee to search for work in a new, unfamiliar geographic market, or if the employee must remain in their current community and is thus limited to a local market already depleted of comparable roles, the reasonable notice period required to find "similar employment" increases. This amplification of the Bardal factors means that relocation-based CD claims often skew towards the higher end of the severance range.
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Post ID: @jv+1k6pkwzk4

@ja @ja you're talking about multiple and disparate things.
The severance offer is probably not enough, talk to a lawyer.

You don't understand constructive dismissal. This is move or accept severance - there is no space there for a constructive dismissal suit. If it was move or nothing, then you could sue for constructive dismissal.

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Post ID: @jr+1k6pkwzk4

@j4 yes this is a constructive dismissal due to the forced relocation and yes severance is being offered. But is the severance high enough? Do you think the company will go above and beyond or do the minimum they think they can get away with to minimize legal liability? Consult a lawyer to determine if your severance is appropriate for the impact you’ll face due to the significant change in your employment contract (forced relocation). Remember, the company is not doing anything for the benefit of the employee. You have rights. And there is significant legal precedence, separate post outlining that.

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Post ID: @ja+1k6pkwzk4

@em yes, and that's why you are being offered severance!

Constructive dismissal covers you when you are "forced to quit" by some means and the company claims they owe you nothing. That is not this situation at all, everyone is being an offered a severance if they don't want to move or don't want to accept a role.

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Post ID: @j4+1k6pkwzk4

@cb forced relocation can be considered as a constructive dismissal

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Post ID: @em+1k6pkwzk4

@cb the real issue is - is the severance right? Is it the bare minimum to make people go away? Should it be higher based on you your individual situation? Based on the market you’re being dumped into? Based on your original employment contract? You think the company would provide severance above the bare minimum to prevent broad liability?
Get a lawyer to review your severance package in your context. What’s been provided is a standard formula for everyone varying only by years of service and maxing out below the precedence from similar cases in Canada and Alberta (24 months).

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Post ID: @cs+1k6pkwzk4

They are offering you severance if you don't move - there is no constructive dismissal

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Post ID: @cb+1k6pkwzk4

Honestly, before you do anything consults a lawyer….this could be leadership trolling to get you to quit and lose it all. This is an open forum. Read. Absorb. Consult experts. Decide what to do. Good luck all!!!

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Post ID: @c1+1k6pkwzk4

@a7 in your employee file….or the document you signed when you got hired on. If you filed it back then and still have it.

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Post ID: @c0+1k6pkwzk4

If they give you a fair offer for severance they are legally protected.

They are also providing enough notice.

Really this just comes down to an appropriate severance amount. They will be close enough its not worth the legal costs to fight individually.

A class action to ensure everyone gets a fair severance amount could spread the risk out enough it is worth taking it on.

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Post ID: @bm+1k6pkwzk4

Where can you actually find a copy of your original employment contract?

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Post ID: @a7+1k6pkwzk4

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