Canada: When Do Reduced Responsibilities Constitute Constructive Dismissal?

Last Updated: November 26 2014
Article by Robert Taylor

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 time?

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 responsibilities.

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  dismissal?

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?

  1. 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- call enlarged.
  2. Where there is a change in responsibilities the employer should confirm that job description has been changed.
  3. 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 term.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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