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EMPLOYMENT LAW
Aug 12, 2014

When fewer people must do more

How much extra work can be given to employees before it’s considered a change in their job?
    

By Jeffrey R. Smith

It seems more and more companies are facing financial pinch, whether perceived or reality, resulting in policies to reduce costs while maintaining output. This is resulting in the squeeze being put on management and HR, who are often faced with the task of achieving the same or better results with fewer resources. If an employee leaves for whatever reason, it’s not uncommon for the position to remain unfilled and others pick up the slack. It could mean the company saves money by not having another person on the payroll, but there are other issues to consider.

Passing along the duties of an unfilled position to existing employees can help save money, but there is a danger of those employees getting overworked and therefore less engaged and more prone to stress and, perhaps, sick leave. In addition, there are legal considerations. If too much work is foisted upon an unwilling employee, there is the issue of whether it’s more than the employee signed up for. At that point, the potential for constructive dismissal raises its head.

An Ontario employer not too long ago found itself in this position. The company was a developer of engineering solutions for office printing and hired someone to be a field service and computer technician several years ago, with his duties and responsibilities set out in writing. After the employee worked in the position for about a decade, the company scaled down some of its staffing and operations, leading it to give him the responsibilities of an IT administrator. There was no additional compensation after this move.

About a year later, the employee felt overwhelmed with his workload and asked for a pay raise to make up for the extra responsibilities as well as raising concerns about how much work he was doing, The company said it couldn’t give him a raise because of financial concerns, so the employee said he wouldn’t continue doing the IT administrator functions. The company responded by hiring a contractor and telling him his employment would be terminated in 12 months’ time. Though the company expected him to work doing those 12 months, it removed the employee’s access to the company’s internal computer system, which he needed to perform his regular duties.

A court found the company constructively dismissed the employee when it gave him extra duties that were beyond his regular job duties, without additional compensation or his consent. The employee made it clear the workload was too much, but the company responded by making it more difficult to do his regular job. The employee was awarded 12 months’ pay in lieu of notice. The court also noted the employee did not fail to mitigate his damages by refusing the offer of 12 months’ working notice, since he wouldn’t have been able to do his job effectively anyway.

Companies are always looking for ways to save money, and employee compensation is one of the biggest costs out there — it’s natural to look at that area for potential cost-saving. But there can be a fine line when cutting staffing costs and expecting the same or better output. When employees are expected to take over the duties of unfilled positions, it can also raise the question of what is considered within the scope of their own positions before additional compensation is required. In the case above, the employee had to take on additional duties from another position. If the additional duties are similar but the workload is increased, should that be considered a fundamental change to the employment contract?

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.
    
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COMMENTS
food for thought
Tuesday, August 12, 2014 4:11:00 PM by Jeffrey R. Smith
Yes, this is a forum for discussion of ideas as to how the law might be interpreted in such circumstances as related above.
not sure
Tuesday, August 12, 2014 3:21:00 PM
I read this thinking it would provide some clarity, but this article asks open ended questions of the reader?