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A change could do you good

There’s a difference between changing an employee’s duties and changing her position

By Jeffrey R. Smith

Restructuring a business is not an easy task for any employer, especially if it affects jobs. Despite the pro-employee leanings of much of Canadian employment law, employers are entitled to dismiss employees if the job cuts are the result of legitimate business reasons.

But what if an employee is not terminated, but her duties and reporting relationship are changed?

Often, when changes are made to an employee’s job, employers have to be careful to avoid a situation where they could have a constructive dismissal complaint hung on them. If an employee’s job is fundamentally changed, such as the nature of the job, compensation or reporting relationship that could be construed as a demotion, the employer must get consent from the employee — usually with some sort of consideration in exchange for the consent. If the employee doesn’t consent and feels forced to quit, a constructive dismissal claim could result. But not always.

An Ontario company did some restructuring of its business a couple of years ago, resulting in some changes to an administrative assistant’s job. Her job was originally divided between two departments and she reported to two different managers. After the changes, her duties in one department were transferred and her new boss was not management-level. She was also removed from the company’s bonus plan, though her salary was bumped up to compensate.

The employee didn’t like the changes and felt it was a demotion because she now reported to someone of a lower level in the company. She also believed the removal of many of her duties left her with too little to do and was a way of pushing her out. However, an arbitrator found her new duties were still that of an administrative assistant and the nature of her job didn’t change. The change in her boss didn’t change her status, either, said the arbitrator.

Ultimately, though the employee had some of her duties taken away and had a new boss at a different level, the nature of her job didn’t change — she was still an administrative assistant. So even though there were significant changes to what she did on a daily basis, it didn’t change her job or status and, as a result, there was no constructive dismissal.

In the above case, significant changes were made to the employee’s employment, but not fundamental changes. She was still doing the same type of job. So perhaps employers can feel a little confident they can go ahead and make changes to employees’ jobs, as long as the nature and level of responsibility remains the same.

Employers should have the ability to move employees to different bosses and alter their duties. But it’s important to remember that just because the job title is the same, doesn’t mean the job is. There could still be a risk of constructive dismissal if employers don’t keep that in mind when restructuring is on the table.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com. For more information, visit www.employmentlawtoday.com.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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