When a departed employee isn't replaced
Question: Is there any liability for constructive dismissal or other employment standards issues if the duties of a departing employee are assigned to an existing employee with no change in pay or reduction in the employee’s other duties?
Answer: There is a fairly common misconception out there that if an employer maintains an employee’s pay level, it is entitled to make changes to other terms of employment, such as their position and duties. That is entirely untrue. It is important to remember the basic definition of a constructive dismissal: a substantial change to a fundamental term of the employment agreement. It does not refer to a change to compensation only. There are many cases in which constructive dismissal has been established despite the fact that compensation was left untouched.
This type of scenario is not uncommon, particularly when there is a downsizing. I have often seen situations where the people that survive the downsizing are left to work the equivalent of two or more full-time jobs in order to compensate for those that were let go. In most cases, the employer does not offer to increase their compensation at all. Essentially, they are asked to work two jobs for the price of one. That can easily constitute a constructive dismissal and entitle the individual to compensation.
Of course, every situation must be assessed based upon its own particular facts, and the onus will be on the employee to prove that what occurred constituted a substantial change. The onus is also on the employee to register an objection to the changes. When we are retained by individuals with potential constructive dismissal claims, we always recommend that they put their objections on the record and allow the employer the time to remedy the situation. As regular readers will be aware, if the employee can prove that she was constructively dismissed, then her legal position will be the same as an employee whose employment is terminated outright. Of course, one of the factors that can become particularly important is that of mitigation; unlike an employee that was dismissed outright, the constructively dismissed employee still has employment available and, in many cases, courts will find that she should mitigate her damages by remaining in that role until finding something else. The employee will have to show that a reasonable person would not do so. That may be possible if she can show that the expectations were simply unachievable.
Stuart Rudner is the founder of Rudner Law, an employment law firm in Markham, Ont. He can be reached at firstname.lastname@example.org or (416) 864-8500.