Canadian Employment Law Today

April 25, 2018

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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with Tim Mitchell Ask an Expert NORTON ROSE FULBRIGHT CALGARY Have a question for our experts? Email Canadian HR Reporter, a Thomson Reuters business 2018 2 | April 25, 2018 Answer: At the heart of most employment relationships is the employment contract, which governs the fundamental terms of employment. ese fundamental terms include compensation, hours of work, and, importantly, job duties and responsibilities. An employer must carefully decide whether and how to change the fundamental terms of employment, as doing so may result in an employee's claim of constructive dismissal. A constructive dismissal occurs when an employer's unilateral change of a funda- mental term of an employment contract in eff ect amounts to a repudiation of the con- tract. is principle applies even in the case where the changes are considered a promo- tion. An employee who successfully estab- lishes a constructive dismissal claim is en- titled to damages in lieu of reasonable notice of termination. An employer can avoid this by obtaining the employee's consent or pro- viding the employee with reasonable notice prior to implementing the change. Obtaining the employee's consent An employee may choose to accept a change in job duties and increased respon- sibilities without a change in compensa- tion. is may be common for an employee who would like the status or other benefi ts that are related to the promotion, or an em- ployee who is interested in gaining more experience. In this case, an employee's claim of constructive dismissal will likely be abandoned, as the change of employ- ment would no longer be considered a uni- lateral act and therefore not constitute a breach of contract. It is important to note, however, that even if the employee accepts the promotion, the terms may not be binding on the employee due to a lack of new or additional consider- ation. e most common form of consider- ation is increased remuneration by way of salary or bonus as courts have been hesitant to fi nd certain other types of compensation to qualify as adequate consideration. For example, an increase in pension con- tribution, increased vacation entitlement, or tax benefi ts that fl ow from the governing statute, have all been found to be insuffi cient to constitute adequate consideration for varying an employment contract. erefore, while an employee may have abandoned her claim of constructive dismissal in this case, without consideration the employer will likely not be able to rely on new elements of the employment contract. If an employer does not obtain the em- ployee's consent, then the employee has two options. e fi rst option is rejecting the change outright and then claiming con- structive dismissal. e second option is making it clear to the employer that she is rejecting the new terms. e employer may then respond by either terminating the em- ployee and off ering re-employment with the new promotion, or by not responding. If the employer does not respond, it is regarded as acquiescing to the employee's position. Providing reasonable notice prior to implementing the change An employer may also choose to provide the employee with reasonable notice prior to changing the employee's job duties and increasing her responsibilities. Generally, the longer an employee has worked for the same employer, the more notice of this fun- damental change the employee is entitled to receive. Once the employee's applicable reasonable notice period has expired, the employer can enforce the employment changes, and the employee will likely have abandoned her claim that she has been constructively dismissed. For more information see: •Potter v. New Brunswick (Legal Aid Ser- vices Commission), 2015 CarswellNB 87 (S.C.C.). •Gaudio v. Banca Commerciale Italiana of Canada, 1999 CarswellOnt 4176 (Ont. S.C.J.). •Agrios v. Mediavision Inc. 1982 Carswel- lAlta 51 (Alta. Q.B.). •Wronko v. Western Inventory Service Ltd, 2008 CarswellOnt 2350 (Ont. C.A.). Promotion without change in pay Question: Can an employee be promoted to a position with different job duties and more responsibilities without a change in compensation? The most common form of consideration is increased remuneration. Employee's LinkedIn profi le information Question: Can an employer tell an employee to change her information on Linked In relating to her job title and duties, particularly if the employee is performing most of the duties indicated? Answer: Whether an employer can require an employee to change her LinkedIn infor- mation relating to her employment will de- pend on the employer's social media policy. Social media policies establish, inter alia, what constitutes appropriate and inappro- priate use of social media and set out the consequences of failure to abide by same. Social media policies should be a staple in all employment relationships, as social media and consequences that fl ow from it continue to expand. If the social media policy addresses the contents of an employee's social media profi le in their capacity as representing the employer on LinkedIn, and the request to modify the employee's job title and duties is reasonable to obtain the purposes of the policy, the employer's request will likely be found to be lawful. In this case, an employer will be able to request that the job title and duties on the LinkedIn profi le refl ect those that the employee is in fact performing. e level of appropriate discipline for a failure to abide by the employer's request will depend on the facts of each case, including the em- ployer's social media policy. Courts have been clear that an employee's off -duty conduct on social media can be cause for dismissal where it prejudices the employer's business interests or reputation. For example, one employee's termination was upheld for criticizing the conditions of the retirement home where she worked online. An employee's failure to fully represent her employment duties on social media does not rise to this level notwithstanding the fact that it may have a harmful impact on the employ- er. erefore, an employee's termination for same would likely not be upheld by the courts. For more information see: •Chatham-Kent (Municipality) v CAW- Canada, Local 127 2007 CarswellOnt 5078 (Ont. Arb.). Tim Mitchell practices management-side labour and employment law with Norton Rose Fulbright in Calgary. He can be reached at (403) 267-8225 or tim.mitchell@norton-

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