Changing reluctant employee’s job duties

Best practice is to tell employee at time of hiring that duties could change
By Tim Mitchell
|Canadian Employment Law Today|Last Updated: 06/20/2011

Question: What would be an employer’s best course of action and potential liability if it wanted to completely change an employee’s job duties if the employee is reluctant to take on the new duties?

Answer: In the absence of a contractual right of the employer to substantially alter the duties an employee was hired to perform, a unilateral change initiated by the employer without the employee’s consent will generally amount to a constructive dismissal. The dismissal is “constructive” because the employer wishes to retain the employee’s services; it is a dismissal because the employer has altered the employee’s duties so substantially that it is an effective repudiation of the employer’s part of the bargain. The employee may accept the repudiation brought about by the unilateral change or leave her employment and sue for wrongful dismissal.

In the past, it was generally assumed that a unilateral change could be made without risking constructive dismissal if the employer provided the employee with reasonable notice of the impending change and did not implement the change until after the expiry of that reasonable notice period. Courts had relied on the comments of the Supreme Court of Canada in the 1997 decision Farber v. Royal Trust Co., as authority for this proposition: “A constructive dismissal occurs when an employer makes a unilateral and fundamental change to a term or condition of an employment contract without providing reasonable notice of that change to the employee.”