Constructive Dismissal

Constructive Dismissal

I want to make this a simple as I can and with that in mind, let’s pretend. Let’s pretend that you are my employer. You have hired me to look after your 13 month old son in your home. We’ve agreed that each day I will read to him, play with him both inside and outside, take him to the play ground and to play group, play music every day, feed him only nutritious foods and put him to bed when he’s tired. Both you and I are happy with this arrangement and we carry on for six months. Then one day your seventy year old mother has a stroke. She has some lingering damage but the medical professionals work with her and she is ready to be released from the hospital. She lives alone and you decide that it would be best if she came and lived with you, just until she was more fully recovered and comfortable living on her own. You mention this to me: she is moving in on a temporary basis; she is capable of looking after herself; she won’t be in my way, nor will she need anything from me except to let the occupational therapist in when she comes.  I’m fine with the new arrangement. My terms of employment have not changed.

One month later, all is well. Your Mom is still living with you and she is looking after herself, she isn’t in my way, nor does she need anything from me. But then she has another minor stroke and is again hospitalized. Within in a short period of time she is back living with you. Again you come to me and tell me what is going on. You ask me if I would mind – just for a little while – making her lunch each day. I agree. A few days later, you ask me if I would mind – just for a little while – checking in with her every half hour or so to see if there is anything she needs. I agree. Then you ask me if I would mind supervising her so that she takes her medications. I agree. Then you ask me if I would mind spending just 20 minutes twice a day supervising her exercises. I agree. Then you ask me if I would mind – just this once – going to the pharmacy and getting your mother’s prescriptions refilled. I agree.

Can you see how, with the best of intentions, you and I are going down a slippery slope. I am taking on more and more responsibility, in the spirit of cooperation, for just a little while. How would you want the story to end?

Perhaps one ending is that you discover that I’m no longer taking your son to play group. You are upset and speak sternly to me. I push back and complain that I just don’t have the time, given all that I’ve been doing for your mother. You tell me that what I’m doing for your mother is just temporary and really isn’t that much extra. I respond that what I’m now doing is not what I was hired to do and there is no end date in sight. Who is right?

You could be right. In the spirit of cooperation, it is fair to ask an employee to occasionally perform additional tasks. I could be right. You clearly hired me to provide child care for your son. You did not hire me for the job of – and I did not take the job of providing elder care as well. And there is no end in sight for these additional responsibilities.

If I decide that I do not want to, or cannot, continue in this job and I leave, I may decide to sue you for constructive dismissal. Constructive dismissal refers to a situation where an employer unilaterally makes a substantial change to an essential term of an employee’s contract of employment. It would be up to the courts to decide if you had indeed unilaterally made a substantial change to an essential term of my employment contract.

This sort of thing can happen quite easily in an organization that is quickly growing. The business owner or supervisor just gets so busy and doesn’t realize how much they are indeed changing the employee’s job. The solution is a regular performance review whereby both the employee and the supervisor review the job description together to see if it is still realistic.

If the job has changed more than 50%, it is recommended that the employer have a new job description prepared. The new job description should also be evaluated to ensure the employee is being paid fairly. If the job should no longer be paid the same rate, and the rate is lower, one option is that the employer gives notice to the employee of the change in responsibilities and in pay. When the notice period is up, the employee’s pay is reduced and their responsibilities formally change. This would give the employee an opportunity to opt out of the new position, and either leave the organization or compete for or receive another position within the company.

Rather than lowering the employee’s pay, another option is to give notice to the employee that their pay will be “red circled”. This means that the employee will not receive pay increases until the salary scale for this job increases. In essence they will be over-paid for the work they are now doing, but this is often the preferred solution for the morale of the workforce.

The best time to make substantial changes to a job description is when the position is vacant. If the changes are made then and the job is posted with the changes, applicants can apply based on this knowledge without any ugly surprises.

At the end of the day, it is up to you as the employer or supervisor to ensure that you do not constructively dismiss an employee, intentionally or unintentionally. I have seen business owners who have hired employees based on one job description with the intention of slowly but surely expanding the scope of their responsibilities. Perhaps they do this with the best of intentions – they intend to increase their pay later – and sometimes they do. Sometimes they never quite get around to it. Perhaps they do this to pay their employees less, thinking that they are getting away with something that is less than ethical. Sometimes they win and sometimes they lose. What kind of an employer are you?


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