Question: If an employer makes changes that significantly increase employee workloads with no additional compensation and some employees express concern over the mental stress this will cause, does that raise liability for an unsafe workplace or create the risk for work refusals?
Answer: Significantly increasing an employee’s workload may subject an employer to legal liability for constructive dismissal. Generally speaking, constructive dismissal occurs when there has been a fundamental breach by the employer of the employee’s contract of employment. The law has long recognized that when an employer unilaterally makes substantial changes to the essential terms or conditions of an employee’s employment contract without the employee’s consent and the employee leaves their job as a result of such changes, the employee has not resigned but has been constructively dismissed. This may entitle the aggrieved employee to common law damages.
The test for whether an employee has been constructively dismissed is an objective one and is essentially a question of fact. There have been many cases in which an increased workload or a change in the employee’s responsibilities has been found to constitute a fundamental breach of the employee’s contract of employment. The extent of the employer’s ability to make changes will depend on what the parties agreed to when they entered into the employment contract. If the additional work being requested by the employer is outside the scope of the employee’s duties, the employee may be well within their rights to refuse such work. Alternatively, an employee may react to an increased workload by demanding an increase in pay or proceeding to take a stress leave.
In addition, requiring unqualified employees to perform safety-sensitive work may subject an employer to liability for an unsafe workplace. Employers have a general duty under occupational health and safety (OH&S) legislation to maintain a safe workplace. Employers also have more specific duties under OH&S legislation, such as the duty to provide all workers with such information, instruction, training, supervision and facilities to ensure the health, safety and wellness of workers while at work. While employees are also subject to OH&S requirements, the employer is generally responsible for ensuring compliance with the relevant legislation. Employers should ensure that employees are properly trained and equipped to handle additional duties resulting from an increased workload.
Leah Schatz is a partner with MLT Aikins LLP inSaskatoon. She can be reached at (306) 975-7144or [email protected]