Canadian Employment Law Today

Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2014 Cases and Trends Additional duties lead to constructive dismissal Employer increased employee's workload; employee fired after refusing to continue with increased role By RonaLd MinkEn When We Think about a situation that leads to a finding of constructive dismissal, it is usually a situation where something has been taken away from an employee, such as key responsibilities, job title, or a reduc- tion in earnings. However, in Damaso v. PSI Peripheral Solutions Inc., the Ontario Su- perior Court of Justice determined that an employer who added duties to an employee breached the terms of the employment agreement, resulting in the constructive dismissal of the employee and an award of 12 months notice. Otoneil Damaso was hired by PSI Pe- ripheral Solutions — a developer of engi- neering solutions for office printing and distribution centres in Mississauga, Ont. — for the positions of field service techni- cian and computer technician. His duties and responsibilities were clearly set out in writing at the time of hire. Damaso's employment continued for the next 10 years. However, changes to the business were required over time and in re- sponse to the economy. In Damaso's tenth year of employment, the employer added to his existing duties the role of IT adminis- trator but did not provide Damaso with any additional financial compensation. About one year later, Damaso was feeling overwhelmed with his new duties and ap- proached the employer. He began request- ing a pay raise due to the additional func- tions he was performing and also informed the company of his concerns regarding the level of work. PSI explained that due to the financial difficulties the company was experiencing, it could not provide a raise. Damaso informed PSI he was not prepared to continue with the IT administrator func- tion, so the company decided to hire an independent contractor to take over IT ad- ministration. PSI instructed the independent contrac- tor to change all of the passwords so Da- maso would not be able to independently access the company's internal computer system, which was required for him to per- form his other duties. One month later, PSI provided Damaso with a letter informing him that his employment was being ter- minated in 12 months' time and he was expected to continue performing all of his duties until his termination. Damaso went on disability leave for a few months and then sued for damages for constructive dis- missal. e court determined Damaso had been constructively dismissed by PSI when the company required that he perform addi- tional duties not agreed upon at the time of hiring and which created a level of work that the company knew Damaso could not handle. e court stated that the additional duties were overwhelming and prevented Damaso from being able to complete all of his tasks. e fact that the employer took away Damaso's access to the server by changing the passwords also prevented him from being able to perform his duties. e court awarded Damaso 12 months notice and stated that he did not fail to mitigate his damages by refusing the 12 months of working notice proposed by the employer. Lessons for employers Employers must be very careful when im- plementing changes to the terms of em- ployment of its employees. Although the courts will grant employees some flexibil- ity to make changes to their business and the responsibilities of its employees, the changes must be reasonable and moderate. Fundamental changes that are implement- ed without enough notice to the employee may result in the constructive dismissal of the employee and the employer's obligation to provide damages for notice. It is recom- mended that employers consider carefully prior to implementing any changes affect- ing an employee's duties, work environ- ment and or earnings to minimize liability going forward. Lessons for employees Employees should be aware that changes implemented by their employer with- out enough advanced notice may lead to a claim for constructive dismissal and an award of damages. Not all changes will be enough to result in a constructive dis- missal situation and the duty to mitigate or minimize one's losses may require the employee to continue working with the employer despite the change. In addition, agreeing to the changes or going along with the changes without objecting may result in the employee losing rights to damages for constructive dismissal. For more information see: • Damaso v. PSI Peripheral Solutions Inc., 2013 CarswellOnt 17617 (Ont. S.C.J.). Ronald S. Minken is a senior lawyer and mediator at Minken Employment Lawyers, an employment law boutique located in Markham, Ontario. He can be reached at www.MinkenEmploymentLawyers.ca. Ron gratefully acknowledges Sara Kauder and Kyle Burgis for their assistance in prepara- tion of this article. Ronald MInKIn WeBInaRS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as family status accommodation, independent contractors, occupational health and safety, the new labour market opinion regime, and a Canada Labour Code primer. To view the webinar catalogue, visit cpdcentre.ca/hrreporter.

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