Is it a fundamental change of employment if employee is already doing the work?
Question: If an employee voluntarily takes on different duties from her regular job and then the employer decides it wants the employee to do those duties permanently, can the employee claim constructive dismissal if she wants to go back to her old job but the employer refuses?
Answer: Constructive dismissal may arise where an employer implements a unilateral change to a fundamental term of the employment contract without the employee’s consent or without providing sufficient notice of the change. However, not all changes to an employee’s contract will lead to a successful claim for constructive dismissal. Only changes imposed by the employer that substantially alter the essential terms of the employee’s contract of employment will provide a foundation for a claim for constructive dismissal.
To determine whether an employee has been constructively dismissed, the court must ascertain whether the unilateral changes imposed by the employer, assessed objectively, substantially alter the essential terms of the employee’s contract of employment. To make this determination, a judge will ask whether, at the time the offer was made, a reasonable person in the same situation as the employee would have felt that the essential terms of the employment contract were being substantially changed.
An action for constructive dismissal must be founded on conduct by the employer and not simply on the subjective perception of that conduct by the employee. The employer must be responsible for conduct which constitutes a fundamental change in employment or a unilateral change of a significant term of that employment.
The primary issue to consider in order to determine whether there has been a significant change in responsibilities is the nature and content of the employment contract. If a person is explicitly employed to fill a specific defined function, he or she cannot be required to perform a different function, even if it may be seen as similar. However, if an employee is hired, for example, into a general management training program with the understanding that she could be transferred to any position not involving a demotion at management’s discretion, the employee cannot then refuse such a transfer. For a constructive dismissal to exist, there must be a significant change in the nature of the employee’s responsibilities, not simply a change in her specific duties.
Employers can make any changes to an employee’s position that are permissible within the terms of the employment contract, including those changes that may be categorized as part of the employer’s general managerial authority. It has been held that an employee’s duties are not totally frozen when a job description is prepared, and an employer must be allowed reasonable leeway to alter duties, especially where changes are necessary for the company’s economic survival and there is no objective element of humiliation or diminished rank or authority. Recent judicial trends indicate there is more leeway in making changes in an employee’s job functions if the employer acts in good faith and in furtherance of its own legitimate business interests.
In the case of an employee who refuses to accept the decision of her employer to permanently assign her duties that she had previously undertaken voluntarily, the first issue to consider is whether the change in duties is permitted by the employment contract. If so, then the employee does not have a claim for constructive dismissal. If the change in duties goes beyond what is permitted by the employment contract, the employee may have the basis for a claim of constructive dismissal.
However, it is possible that duties that are not provided for in the contract, but are nevertheless performed voluntarily, can subsequently become part of the contract by the conduct and renewal of the relationship by the employer and employee.
In Winnipeg Teachers’ Assn., Local 1 v. Winnipeg School Division No. 1, the Supreme Court of Canada stated that an employee voluntarily taking on additional duties, where there is no express statutory or contractual obligation to do so, cannot be the basis of such duties forming a term of the employment contract. However, duties performed voluntarily, can become, by course of conduct and of renewal of relationships over a period of time, recognized as part of the obligations of employment upon which the relationship has developed.
In Durham Catholic District School Board v. O.E.C.T.A., at issue was whether the teachers were obligated to attend and participate in parent-teacher interviews even though there was no express statutory or contractual duty to do so. The arbitrator applied Winnipeg Teachers’ Assn. and found that participation in parent-teacher interviews had become mandatory by course of conduct and renewal of relationships over a period of time, noting that teachers had participated for at least the past 31 years and had not challenged the practice until then.
As such, whether a claim for constructive dismissal arises in the case of an employee who refuses to accept the decision of her employer to permanently assign to her duties that she had undertaken voluntarily prior will depend on the facts of the case. It is clear that an agreement by the employee to perform different duties for a temporary period of time is a different scenario than if the employee is being required to accept a permanent change. The conduct of the parties over a period of time can be the basis upon which duties, that were previously not obligations under the employment contract, can be recognized as being part of the employment contract. Factors to consider would include the length of time that the employee performed the duties and whether the employee raised any issues with the performance of such duties.
