Contractors taking on more, employees getting less to do
Question: If an employer hires independent contractors that eat away at the job duties of a regular employee to the point where the employee’s duties barely resemble his original job, can that be constructive dismissal?
Answer: Short answer: yes.
The key aspect is the latter part of this question. It doesn’t matter whether the duties are being transitioned to another employee or to a contractor, or whether they are being eliminated entirely. What matters is that an employee is losing a significant portion of her duties and responsibilities. This would, in all likelihood, amount to a substantial change to a fundamental term of her employment, which is the definition of constructive dismissal.
First, there would need to be a factual assessment of the significance of the changes. As well, the terms of the employee’s contract would have to be considered they may have agreed that the employer has the right to make such changes. Furthermore, such changes can be made, even without a contractual right, if they are implemented with appropriate notice. Lastly, it is always open to the parties to agree to new terms of the relationship, though this would have to be a legitimate agreement involving consideration flowing both ways.
So regardless of why, if an employee is losing a significant portion of her duties, then there may well be an issue of constructive dismissal. However, all of the circumstances would have to be considered before a determination is made.
Stuart Rudner is the founder of Rudner Law, an employment law firm in Markham, Ont. He is the author of You’re Fired: Just Cause for Dismissal in Canada published by Carswell, a Thomson Reuters business. He can be reached at [email protected] or (416) 864-8500.
