Many employers now have job descriptions for their employees,
whether they are in the initial offer letter (for more junior
employees) or in a detailed employment agreement (usually reserved
for more senior and highly paid employees). Some employers just use
titles to denote responsibilities. In between there are employers
whose employees, through initiative or necessity, assume duties
that had previously been performed by other employees.
Most employers appreciate an
employee who goes above and beyond
— someone who does more than the
minimum required by the job description.
But what happens when an employee has responsibilities taken
away, whether they were initially assigned or assumed over
At what point does a reduction in responsibilities
amount to a constructive dismissal?
When I meet senior executives whose duties have been changed,
there is much confusion about what constitutes a
constructive dismissal. It is not
any change to an
employee's responsibilities. It
is a unilateral change by the employer which substantially
altered the essential terms of the employee's contract of
employment. Typically this involves a substantial change such as a
reduction in responsibilities or compensation which results in a
considerable loss of prestige and status.
Thus, where the employer conducts a reorganization where
an employee reports to a former
subordinate and suffers a reduction
in compensation, the court will likely find that
such changes constitute a constructive dismissal. Also,
where an employee has responsibilities removed
and has fewer reports, a
finding of constructive dismissal is probable.
It is not how the employee feels about the changes but whether,
viewed objectively, they meet that threshold.
However, the employer can make changes to the employee's
position that are allowed by the contract.
A recent case, Robbins v. Vancouver (City), 2014 BCSC
872 (B.C. S.C.), considered
whether the employee can assume
additional duties as part of
her job and then take the position that they have been
constructively dismissed if they are taken away.
Carlene Robbins was a long
service employee with the City of Vancouver
who had risen to the position of manager of the
property use branch in the by-law enforcement department with
29 employees reporting to her. She had a
close working relationship with
Barbara Windsor, her supervisor, who
was respond- sable for co-ordinated
enforcement of bylaws. Over time, Windsor
informally delegated to Robbins more and more of the enforcement
When Robbins retired, her position was
eliminated and a restructuring was
proposed with someone having the
qualifications of an engineer taking over Windsor's
responsibilities, some of which had been performed by
Robbins. Robbins applied for that
position but she was not an engineer and therefore lacked the
qualification for the new position.
Subsequently an engineer was hired to take over those
responsibilities. Robbins was instructed to turn over the
enforcement files she was handling.
Robbins then claimed that the removal of these responsibilities
meant she had been constructively dismissed (although her
compensation remained the same).
Did the fact that she had assumed
those additional and more senior responsibilities
which were later removed constitute a constructive
In this case, the Vancouver
Supreme Court decided that the removal of
those assumed responsibilities did not constitute a
constructive dismissal because the enforcement
responsibilities were never part
of her formal job description and therefore
their removal did not constitute a unilateral change to the
terms of her employment.
Moreover, employers are allowed some deference by the courts in
how they manage their businesses. It is not the court's job to
micro-manage or second-guess an employer's personnel decisions
unless it is to a fundamental term.
So what lessons can be drawn from this case?
Job descriptions matter. If a duty has being assumed by an
employee which is not part of that employee's formal job
description the employee's responsibilities are not automate-
Where there is a change in responsibilities the employer should
confirm that job description has been changed.
The removal of a responsibility (whether in a job description
or not) does not necessarily mean a constructive dismissal
especially it is not part of the employee's job description.
Further, the change must be a substantial one to a fundamental
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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