Your “job description” when you accept your employ may be more important than you realize. 

When an employer changes or modifies an employee’s duties or role, if the change is substantial, it may amount to a “constructive” (rather than wrongful) dismissal.

Effectively, in order to potentially qualify as a change that justifies the employee refusing to continue and suing for damages, the change must meet this two-part test:

  1. firstly, the change must be made unilaterally by the employer and be considered a breach of an express or implied term of the employment contract, which substantially alters an essential term of employment; and
  2. a reasonable person in the same situation as the employee would have believed that an essential term of employment was substantially changed.

In a recent case, a senior manager, who had been employed by a large municipality for eighteen years, resigned from his employ, alleging that the employer had substantially altered his job duties and responsibilities. He also sued for constructive dismissal.

The Court applied the test above and, in doing so, held that the new job assignment given to the employee involved no change in pay or title. There was also no loss of status or prestige. The Court also held a unilateral change in duties or a role, even if substantial, was an implicit part of the job as set out in the particular job description for the employee. The employee had not been hired to perform any one specific function and his expected duties were broad in scope. It was not an express or implied term of his employment that he would always maintain the same duties and responsibilities.

The lesson?

Employers should ensure that job descriptions are broadly worded, not narrowly defined. The key issue is the nature and scope of the duties expected of the employee. A broadly cast job description will allow the employer more flexibility to reassign work, change duties or alter an employee’s role, including if the business evolves or changes over time. In this case, the Court held, based on the broadly worded job description, the employer had the right to reassign files and projects without threatening the employment relationship.

The employee lost. No damages for “constructive dismissal” were awarded. 

The Case:

Whalley v. Cape Breton Regional Municipality, 2018 NSSC 325 (CanLII)

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