THE QUESTION
I work for a company that has recently undergone structural changes. My role was changed to lead a small team. I was not leading anyone before. This new role was announced to the company before speaking to me and explaining the changes in my job description. Is this allowed? I’m not getting a raise for this expanded role. What can I push back against?
THE FIRST ANSWER
Sarah Coderre, partner and co-founder, Bow River Law LLP, Calgary
While an employer is permitted to adjust an employee’s duties and responsibilities to align with the needs of the business, an employer is not permitted to change fundamental terms of an employee’s employment without the employee’s consent. “Fundamental terms” include (but are not limited to) things such as compensation, key duties and responsibilities, job title/reporting structure and location of work.
The change of your role from a non-leadership position to one where you now have direct reports is a fundamental change to the terms of your employment. Even if this change was accompanied by a raise in your base salary or additional other compensation, it is still a significant change in your employment and it could constitute a constructive dismissal if you do not agree to it. Constructive dismissal occurs where an employer has essentially fired an employee through their (the employer’s) conduct without expressly stating that they have been fired. It can occur when an employer makes a material change to an employee’s terms of employment that the employee does not consent to, or where an employer makes the employee’s work environment so intolerable that they have no choice but to leave.
An employee who has been constructively dismissed is entitled to receive damages from their employer equivalent to the compensation they would have received if they had been given reasonable notice of termination by their employer. You have a few options: (1) accept the role and try to negotiate additional compensation or leverage your willingness to take on the role in some other way; or (2) reject the new position entirely, leave your employment and claim constructive dismissal. If you think you may want to proceed with a claim for constructive dismissal and seek damages from your employer, please seek further legal advice before doing so.
THE SECOND ANSWER
Busayo Faderin, associate, Koskie Minsky LLP, Toronto
Navigating changes in the workplace can feel unsettling, so it is natural to seek clarity and reassurance in such situations. The first consideration for answering your question is whether the company is a unionized or non-unionized environment. Unionized environments are governed by a collective bargaining agreement so the situation may be different than in a non-unionized environment that operates on an individual employee-to-employer agreement basis.
In a unionized setting, there is an agreement between the employer and union that outlines specific protocols regarding changes to job roles and responsibilities. This is the legal framework that would outline how changes to an employee’s role are to be handled. Typically, there would be negotiations or discussions with the union before announcing significant structural changes.
In the non-unionized employment setting, there isn’t a general legal requirement under Canadian law for a company to get an employee’s consent before announcing role changes. However, just because a practice is legal does not mean it is ideal.
Significant changes to an employee’s position or the terms of their employment may trigger the legal requirement for the company to provide reasonable notice of the change or potential compensation to the employee. A failure to do so and/or to obtain the employee’s consent to the changes may result in a constructive dismissal.
If your position is non-unionized, after getting advice from an employment lawyer, discuss your concerns and compensation requests with your employer. If unionized, your first point of contact is your union representative. Once you know what is important to you and what options are available at your company, you’ll be better positioned to get the most out of your consultation with an employment lawyer for strategic legal guidance.
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