Canadian Employment Law Today

Ask an Expert Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2015 with Brian Kenny 2 | May 27, 2015 Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com ASK THE EXPERT on page 11 » Assigning an employee's voluntary duties on a permanent basis Question: If an employee voluntarily takes on different duties from her regular job and then the employer decides it wants the employee to do those duties permanently, can the employee claim constructive dismissal if she wants to go back to her old job but the employer refuses? Requiring a doctor's note if employee is within sick day limit Question: If employees are given a specific amount of sick days to use each year, can the employer request a doctor's note when the employee is still within her allotment of sick days? Answer: When an employee takes sick leave, an employer is entitled to request that an em- ployee provide a doctor's note regardless of whether or not the employee is within her al- lotment of sick days. An employer is entitled to do so even in the absence of any specific management rule or clause in the collective agreement or employment contract. Such a right is also expressly provided for in legislation. For example, in Saskatch- ewan, s. 2-47(1) of e Saskatchewan Em- ployment Act provides as follows: "If an employment leave involves a medical issue and the employer so requires, the employee shall provide written evidence in the form of a certificate from a duly qualified medical practitioner as to the reason for the leave or the extension of the leave. Generally, the employer is entitled to re- quire all the information reasonably neces- sary to determine whether the illness or dis- ability is bona fide and what impact it will have on the attendance of the employee. Such information includes the nature of the illness, the prognosis, if any, and the Answer: Constructive dismissal may arise where an employer implements a unilateral change to a fundamental term of the employ- ment contract without the employee's con- sent or without providing sufficient notice of the change. However, not all changes to an employee's contract will lead to a successful claim for constructive dismissal. Only chang- es imposed by the employer that substantially alter the essential terms of the employee's contract of employment will provide a foun- dation for a claim for constructive dismissal. To determine whether an employee has been constructively dismissed, the court must ascertain whether the unilateral changes imposed by the employer, assessed objectively, substantially alter the essential terms of the employee's contract of employ- ment. To make this determination, a judge will ask whether, at the time the offer was made, a reasonable person in the same situ- ation as the employee would have felt that the essential terms of the employment con- tract were being substantially changed. An action for constructive dismissal must be founded on conduct by the employer and not simply on the subjective percep- tion of that conduct by the employee. e employer must be responsible for conduct which constitutes a fundamental change in employment or a unilateral change of a sig- nificant term of that employment. e primary issue to consider in order to determine whether there has been a signifi- cant change in responsibilities is the nature and content of the employment contract. If a person is explicitly employed to fill a spe- cific defined function, he or she cannot be required to perform a different function, even if it may be seen as similar. However, if an employee is hired, for example, into a general management training program with the understanding that she could be trans- ferred to any position not involving a demo- tion at management's discretion, the em- ployee cannot then refuse such a transfer. For a constructive dismissal to exist, there must be a significant change in the nature of the employee's responsibilities, not simply a change in her specific duties. Employers can make any changes to an employee's position that are permissible within the terms of the employment con- tract, including those changes that may be categorized as part of the employer's gen- eral managerial authority. It has been held that an employee's duties are not totally frozen when a job description is prepared, and an employer must be allowed reason- able leeway to alter duties, especially where changes are necessary for the company's economic survival and there is no objective element of humiliation or diminished rank or authority. Recent judicial trends indicate there is more leeway in making changes in an employee's job functions if the employer acts in good faith and in furtherance of its own legitimate business interests. In the case of an employee who refuses to accept the decision of her employer to permanently assign her duties that she had previously undertaken voluntarily, the first issue to consider is whether the change in duties is permitted by the employment contract. If so, then the employee does not have a claim for constructive dismissal. If the change in duties goes beyond what is permitted by the employment contract, the employee may have the basis for a claim of constructive dismissal. However, it is possible that duties that are not provided for in the contract, but are nevertheless performed voluntarily, can subsequently become part of the contract by the conduct and renewal of the relation- ship by the employer and employee. In Winnipeg Teachers' Assn., Local 1 v. Winnipeg School Division No. 1, the Su- preme Court of Canada stated that an em- ployee voluntarily taking on additional du- ties, where there is no express statutory or contractual obligation to do so, cannot be the basis of such duties forming a term of the employment contract. However, duties per- formed voluntarily, can become, by course of conduct and of renewal of relationships over a period of time, recognized as part of the obligations of employment upon which the relationship has developed. In Durham Catholic District School Board v. O.E.C.T.A., at issue was whether the teachers were obligated to attend and participate in parent-teacher interviews even though there was no express statutory or contractual duty to do so. e arbitrator applied Winnipeg Teachers' Assn. and found that participation in parent-teacher inter- views had become mandatory by course of conduct and renewal of relationships over a period of time, noting that teachers had par- ticipated for at least the past 31 years and had not challenged the practice until then. As such, whether a claim for constructive dismissal arises in the case of an employee who refuses to accept the decision of her employer to permanently assign to her du- ties that she had undertaken voluntarily prior will depend on the facts of the case. It is clear that an agreement by the employee to perform different duties for a temporary period of time is a different scenario than if the employee is being required to accept a permanent change. e conduct of the par- ties over a period of time can be the basis upon which duties, that were previously not obligations under the employment con- tract, can be recognized as being part of the employment contract. Factors to consider would include the length of time that the employee performed the duties and wheth- er the employee raised any issues with the performance of such duties. MACPHERSON LESLIE & TYERMAN REGINA

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