As Ontario employment lawyers, we are frequently asked questions from both employers and employees alike relating to what can happen when changes are made to an employee’s job duties or responsibilities without the employee’s consent to those changes. On one hand, an employee may not consent to those changes because they feel that those changes may be beyond the scope of what they were hired to do, perhaps those changes could constitute a demotion or result in lost prestige that they do not agree to, etc. However, on the other hand, an employer may see these changes as necessary to the successful operation of the business or are simply changes that are not substantial changes and, as such, these changes to an employee’s job title or job description are not changes that the employee should refuse.
This blog seeks to provide some information related to whether an employer has the right to make changes to an employee’s job description without the employee’s consent, including whether the employee’s employment contract with the employer is a concern, when does the change to an employee’s job description become constructive dismissal and what steps should an employee take if they do not consent to a change in their job description.
Should an Employee First Look at Their Employment Contract?
Yes. An employee should review their employment contract or employment agreement with the employer if they are set to experience a change in their job description or job duties. For example, there may be certain clauses or provisions contained in the employment contract or employment agreement that speaks to the issue at hand (a change to job description or job duties).
A common type of employment agreement clause that employment lawyers see are clauses that set out that the employee should expect some sort of fluidity or flexibility in terms of a change to the employee’s job description or job duties or that the employer must obtain the employee’s consent before making any changes. However, there could also be a situation where the employment contract or employment agreement fails to speak to these issues at all. In either case, this information is important for employees (and employers) to know and understand as it relates to a change in the employee’s job description or job duties.
When Does a Change to the Employee’s Job Description Become Constructive Dismissal?
To remind our readers, constructive dismissal occurs when an employee’s fundamental terms of employment are changed unilaterally by the employer, if the employer evinces an intention to not be bound by fundamental terms or if the employee is subjected to some sort of illegal act such as harassment or a toxic work environment. In such instances, the employee is forced to leave their job without being directly fired or terminated by the employer. How the employee leaves the workplace is not crucial to the analysis when it comes to constructive dismissal. What is crucial is that the employee’s employment will usually be impacted to the point where it would be unreasonable to stay or to accept the fundamental changes in their employment.
The crux of virtually every constructive dismissal case is that an employer makes or intends to make a substantial change to the employee’s terms of employment without the employee’s consent. Generally, the terms of employment should be key aspects of the employment contract or relationship. Changes that are too small or less important terms will not trigger constructive dismissal.
Therefore, in cases where an employer has changed an employee’s job description or job duties without that employee’s consent, it may be constructive dismissal. However, further analysis of the situation would be needed by an employment lawyer. The likelihood that those changes are constructive dismissal goes up if those changes are substantial. For example, if the change is very different from what the employee was expected to do previously, if the change is unrelated to what the employee’s job description was prior or if the change to an employee’s job description or duties is linked to the employee’s principal responsibilities with the employer all would increase the likelihood that the employee was experiencing constructive dismissal.
Employees should not wait too long before approaching an employment lawyer to assist them in making a claim for constructive dismissal. If an employee waits too long to claim constructive dismissal and continues their job, the employer may be able to argue that the employee has accepted and agreed to those changes.
What Should the Employee do if the Employer Changes the Employee’s Job Description and They Do Not Consent?
Here are some steps that an employee can take if the employee’s employer demands that they change job description or job duties and the employee has concerns about that demand. Also, these steps are steps that an employee should take before they agree to the demand by the employer to change their job description or job duties.
- You should get specific information about the expected change to your job description or job duties by your employer. For example, you should know exactly when this change is going to happen and what expectations your employer has that are related to that change.
- You should ensure to document those changes to your job description and review and gather any other documents that may be relevant including your employment agreement.
- You should speak to your employer so that they are aware that you do consent to those changes to your job description.
- You should ensure you do not sign or agree in writing to those changes such as agreeing to a new employment agreement.
- You should then take the information or any documents from #1 – 3 above and approach an employment lawyer in order to understand your options and maintain your employment law entitlements to termination and severance pay.
How can Zeilikman Law help?
The employment lawyers at Zeilikman Law can help employees assess their employment situation with their employer to see if they have a possible claim for constructive dismissal relating to a change in their job description or job duties by reviewing the facts of the matter and determining what further action an employee could take to protect their employment rights to termination and severance pay.
For more information about this topic and the related employment law topic of constructive dismissal, please visit our blogs entitled:
- What Is Constructive Dismissal? A Guide for Employees
- Can My Employer Make Changes to My Job Without My Consent?
- Consequences and Questions Regarding Voluntary Resignation in Employment Law
If you are an employee where your employer has demanded that you change your job description or job duties and you have concerns about that change, do not hesitate to contact Zeilikman Law. You can contact us at (905) 417-2227 or online here to schedule a confidential consultation.
