Additional Duties Results in Constructive Dismissal, Award of 12 Months Notice

Frustrated Employee

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, their title or earnings. However, in Damaso v. PSI Peripheral Solutions Inc. (“PSI”), Justice T. J. McEwen determined that an employer who gave additional duties to an employee breached the terms of the employment agreement resulting in the constructive dismissal of the employee and the award of 12 months notice.

Mr. Damaso was hired for the positions of Field Service Technician and Computer Technician. His duties and responsibilities were clearly set out in writing at the time of hire. Mr. Damaso’s employment continued for the next 10 years. However, changes to the business were required over time and in response to the economy. In Mr. Damaso’s tenth year of employment, the employer added to Mr. Damaso’s existing duties the role of IT Administrator but did not provide Mr. Damaso with any additional financial compensation despite his additional duties. Approximately 1 year later, Mr. Damaso was feeling overwhelmed with his new duties and approached the employer. He began to engage in conversations with his employer requesting a pay raise due to the additional functions he was performing and also informed the employer of his concerns regarding the level of work. The employer explained that due to the financial difficulties the company was experiencing, it could not provide a raise. Mr. Damaso informed the employer that he was not prepared to continue with the IT Administrator function. The employer decided to hire an independent contractor to take over the IT Administrator function. The employer instructed the independent contractor to change all of the passwords so that Mr. Damaso would not be able to independently access the company’s internal computer system, which was required for Mr. Damaso to perform his other duties. Approximately 1 month later, the employer provided Mr. Damaso with a letter informing him that his employment was being terminated in 12 months time and he was expected to continue performing all of his duties until his termination. Mr. Damaso went on disability leave for a few months and then pursued the employer for damages for constructive dismissal.

At Trial, the Court determined that Mr. Damaso had been constructively dismissed by his employer when his employer required that Mr. Damaso perform additional duties not agreed upon at the time of hiring and which created a level of work that the employer knew Mr. Damaso could not handle. The Court stated that the additional duties were overwhelming and prevented Mr. Damaso from being able to complete all of his tasks. The fact that the employer took away Mr. Damaso’s access to the server by changing the passwords also prevented Mr. Damaso from being able to perform his duties. The Court awarded Mr. 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 implementing changes to the terms of employment of its employees. Although the Courts will grant employees some flexibility to make changes to their business and the responsibilities of its employees, the changes must be reasonable and moderate. Fundamental changes that are implemented 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 recommended that employers seek the guidance of Employment Law Lawyers prior to implementing any changes affecting an employee’s duties, work environment and or earnings to minimize liability going forward.

Lessons for Employees

Employees should be aware that changes implemented by their employer without 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 dismissal situation and the duty to mitigate or minimize ones losses may require the employee to continue working with the employer despite the change. To understand their rights and obligations, employees should seek out the advice of an Employment Law Lawyer as soon as they are informed of any changes to their employment. As agreeing to the changes and or going along with the changes without objecting may result in the employee losing their rights to damages for constructive dismissal, it is crucial that employees not delay in seeking legal advice to guide them through the legal maze that constructive dismissal situations present.

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