Richard asked:

In regards to the E.S.A. is there anything in the act that refers to changing an employee's duties or job description? What I am getting to is where an employer keeps on changing an employee's duties as a means of getting that particular employee to quit out of frustration.

Monica Beauregard answered:

Some employers, in an attempt to get rid of employees will make a workplace unbearable by modifying the conditions of employment. If the employee resigns, the employer is relieved of notice requirements under the Employment Standards Act. Others unintentionally modify conditions of employment without understanding that this could force an employee out of the organization. Deliberately or not, the courts hold employers liable for “constructive dismissal” if the employer unilaterally changes a fundamental aspect of employment.

Examples include downward changes in pay, significant changes to job functions, and relocation of a job or office. Recently, however, the courts recognize that employers should be allowed some flexibility in structuring jobs. This makes constructive dismissal more difficult to prove.

Whether a situation is constructive dismissal depends on its particular facts. An employee must prove to the court that the change was serious enough to constitute a repudiation of the employment contract. The following are items that may tip the scale in an employees favour in a complaint of constructive dismissal:

• the changes were significant
• the decision to change employment was not based on solid business reasons
• changes were not explained to the employee and the employee did not agree to the modified conditions
• the employer could reasonably anticipate that the changes to employment may force an employee out of the organization.
• the employer did not provide sufficient notice to enable the employee to adjust to the change
• when hiring, nothing was discussed or documented detailing that certain changes should be expected
• the employer did not allow the employee sufficient time to find new employment in the case of the employee not agreeing to the changes.

If an employee is faced with the possibility of constructive dismissal, they should seek legal advice as soon as possible to discuss their alternatives.

Cautionary Note: If the employee is presented with a change to their employment contract and they continue to work under the new conditions without seeking legal advice, they may limit their ability to claim constructive dismissal. The courts could consider that the employee's willingness to work under the new conditions constitutes their agreement to the changes.

About the author

Monica Beauregard is the co-author of Hiring, Managing and Keeping the Best: The Complete Guide for Canadian Employers [ISBN: 0070864217] and she is Vice President of Bridgepoint Inc., a human resources consulting firm.

 
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