Employers should take note that complaints of being overworked
are not simply a symptom of workplace dysfunction, they can be a
cue for a lawsuit.
When Paul Damaso was hired by Mississauga, Ont.-based PSI
Peripheral Solutions, his job description was to service the
in-house LAN network and printers. But as the computerized
high-speed envelope printing changed, Damaso was appointed IT
administrator for the company's newly established automated
division. That new role came with additional responsibilities and
time, but no increase in pay. Overwhelmed and unable to complete
his tasks, Domaso complained to the president, John Panunto, and
his wife, Nancy.
The Panuntos pushed back, asserting that Damaso's new
function was a natural evolution because business had slowed and
his role as it stood could no longer be justified. They claimed the
company had salvaged his employment through this expanded role.
Their response was not limited to mere debate. They also
reviewed surveillance cameras and concluded Damaso had reduced his
working day from 8 to 7.5 hours.
Damaso pushed back. He informed the owners that within 10 days
he would stop performing IT work. The company did not flinch,
persisting in its refusal to provide Damaso with a raise. It
retained an independent contractor to assume the IT functions at
PSI. Additionally, Damaso's access to the internal computer
system was blocked by changing the passwords. Damaso was then
summoned to a meeting and given notice of his termination in one
year's time. In the interim, he would be assigned IT, software
support and service duties.
Domaso went on sick leave for four and a half months, then sued
PSI for constructive dismissal in the Ontario Superior Court of
Justice Thomas McEwen allowed that an employer has some
flexibility to change a job description as its business evolves.
PSI had experienced periodic business difficulties that negatively
impacted on its operations. Nonetheless, it did not justify
overburdening Domaso to the extent he was unable to complete all of
his tasks. PSI had fundamentally breached the employment agreement
by ordering him to perform all of his former and new duties in the
face of Damaso's reasonable protest he simply could not.
The owners' palpable hostility to Damaso and demand he
perform services without the necessary passwords resulted in such a
humiliating situation that Damaso was not required to continue his
duties during the working notice period. Damaso was awarded 12
The overarching message of this decision is that overworking
employees and ignoring otherwise reasonable complaints of overwork
can generate litigation with serious financial implications. To
avoid these potential consequences, the following steps should be
Define employer's latitude
The absence of an employment agreement that would have afforded the
employer the discretion to expand a job description was the notable
omission in this case. Damaso would have been hard pressed to have
sued if this breadth had been defined.
Listen to employees
If the consistent message from staff is that they are overworked,
appreciate the risks of constructive dismissal.
Accommodate requests for adjustments
If an employee is off on depression or anxiety, look to adjust
their duties and create a gradual return to work that makes for a
When an employee feels he is facing an adverse climate in the
workplace, it bolsters the argument he does not have a duty to
return. To the extent possible, any meetings with complaining
employees should be conducted in an amicable atmosphere rather than
a hostile or predetermined one.
Confront the issue
If it is apparent that the working relationship has broken down
irreparably, terminate rather than provide working notice. Courts
are apt to view working notice in these circumstances as a
disingenuous attempt to avoid severance. They will then work hard
to find a legal path for the employee to succeed.
Originally published in the Financial Post.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
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