THE QUESTION
I have been working at the same company for two years in a customer-service role. The original job description said I would need to help with administrative duties as needed, but I didn’t have to do this until a month ago when the company restructured. Now I’m expected to do admin tasks in addition to my customer service responsibilities. I’m worried that because admin tasks were in the original job description, I can’t do anything about the additional duties. Do I have any leverage in this situation?
THE FIRST ANSWER
Madeeha Hashmi, lawyer, Karimjee Law, Toronto
Generally, an employer can make minor changes to an employee’s duties and responsibilities. However, employers cannot unilaterally make fundamental changes to essential terms of employment without an employee’s agreement. Where an employer has made a significant and detrimental unilateral change, an employee may object and assert that the employment relationship has been constructively terminated and seek damages for wrongful dismissal.
In your case, the assessment of whether you have any recourse depends on how significant or material the employer changes are. Your job description at the time of hire built in some flexibility for the employer as it included a provision that you would take on administrative duties on an as-needed basis. While administrative tasks were included in your original job description, given that you have not performed administrative tasks throughout your employment, you can argue that your terms of employment in practice have not included administrative tasks such that there is a change. However, whether this is a fundamental change triggering a right to claim constructive dismissal depends on the nature and extent of the new administrative duties and how significantly they impact your role. Relevant factors may be whether the new duties are ones that you are not qualified for and have not been trained to do, whether the completion of increased duties within one job creates stress or requires you to work excess hours, or whether the new duties are lesser tasks that provide reduced job satisfaction.
As such, it may be beneficial for you to consult with legal counsel to explore whether the changes you are concerned about would make a constructive dismissal claim possible.
THE SECOND ANSWER
Drew Jarisz, barrister and solicitor, Taylor Janis LLP, Edmonton
Unfortunately, you are unlikely to have much legal leverage in the circumstances. In situations where the employer changes the terms of employment without the employee’s consent, an employee can leverage the prospect of a constructive dismissal claim to push back on the changes. Employers may well backtrack on implementing changes to the terms of employment when the prospect of a legal action is raised.
In situations like yours, where there is a dispute as to duties the employee is obligated to perform, the law looks to the reasonable expectation of the parties. If there is a written contract that expressly states you may be required to perform administrative duties then you are unlikely to have much legal leverage.
If you had been promoted after your start date or if your working hours are extended beyond what they previously were, then the answer may be different. While you may not have much leverage from a legal perspective, you are always free to try renegotiating your role with your employer.
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Andrea Yu