THE QUESTION
My boss has unilaterally informed me I will have people reporting to me. My original offer letter and job description never included a supervisory role. Moreover, the duties of the two employees are in specialized jobs; they reported to someone else before and have nothing to do with my work. My boss has said I won't be receiving financial compensation for the additional work because the budget doesn't allow for it. Can they do this? What are my rights?
THE FIRST ANSWER
Jennifer Fantini Partner in the Toronto office of Borden Ladner Gervais LLP, practising labour and employment law
Imposing supervisory responsibilities on an employee may have several implications. It may result in an increased workload and different responsibilities requiring a different skill set. It may be the employee is being asked to take on duties that he or she does not enjoy or does not feel equipped to handle.
However, does that mean it amounts to constructive dismissal? Not necessarily. A constructive dismissal occurs when there is a fundamental change to an essential term or condition of employment that is unilaterally imposed by an employer.
In this case, the employee has not consented to enhanced duties, so the question becomes whether the introduction of supervisory responsibilities amounts to a fundamental change.
Generally speaking, employers will have the latitude to change an employee's job duties as long as these alterations do not amount to a significant demotion or involve a reduction in remuneration and provided there are no express terms of the agreement that prohibit such alterations. If the employee has a written offer letter or employment agreement that allows the employer to introduce new duties from time to time, as required by operational needs (or words to that effect), the employer could argue the introduction of supervisory duties is simply an application of the employment contract.
For the most part, an increased scope of job responsibilities will not be considered a fundamental breach of the employment contract, unless the additional duties are extremely onerous. At a minimum, the employee should not act prematurely, and may be required to remain in the altered position for a trial period to determine the impact of the new duties on his or her position before asserting there has been a constructive dismissal.
SECOND ANSWER
Bill Howatt Chief research and development officer, work force productivity, Morneau Shepell
Whenever an employer changes the original terms of an employee's contract, it is advisable to provide the employee with "responsible notice" of the job change to reduce the risk for a future constructive dismissal claim. So, yes, your employer can change your role without your input.
Your real question may be around whether you were given a responsible notice period, which is typically a couple of months or more. This period of time is where the employee being affected by a job change can elect to stay or use this time to look for other employment. If you are unsure of your legal rights, it is best to discuss this type of matter with a lawyer specializing in employment law, as they are experts and look at every case on an individual basis.
Another alternative is to look at this as a positive change and résumé-building opportunity. If you have no supervision skills on your résumé, you have an opportunity now to gain some experience. Ultimately, you will need to define your career path and whether you want to accept or reject this challenge.
The fact is, you have been identified as a resource who can be trusted to lead. It appears there is a business need and challenge that you are being asked to solve. Yes, it would be nice to get paid more, but many businesses are trying to do more with less in order to survive. By becoming an effective supervisor you may be positioning yourself for future opportunities and higher compensation.
In the end, the lens through which you view this situation will affect your status and decisions. It may not be what you want, but you do have a choice to look for the positive or to focus on the negative.
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Bill Howatt