Can my employer make changes to my work during the pandemic?

The pandemic has caused many changes for both employers and employees. Despite the fact that COVID-19 has altered all of our lives, it has not fundamentally changed the rights of employees in Ontario, Alberta and BC.

What is a Constructive Dismissal?

However, changes to the nature of an employee’s work may constitute a constructive dismissal in certain cases. A constructive dismissal occurs when the employer changes a term of an employee’s work in a serious way or demonstrates that it no longer wants to retain the employee. In such cases the employee can then accept or reject the terms of the change and put an end to the employment agreement. This would require the employer to pay the employee a severance package.

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There are two ways an individual could be constructively dismissed:

• A fundamental change to a term of employment takes place, or
• The employer demonstrates that it no longer wants to employ the employee.

To determine whether an employer’s change to the terms of employment is fundamental depends on the situation. For example, requiring an employee to use a blue pen rather than a black one is probably not a fundamental change. On the other hand, asking a CEO to clean toilets probably is a fundamental change to the terms of their work. Each case will fall somewhere in between these two extreme examples.

Can my employer change the terms of my work because of COVID-19?

Despite what you may think, COVID-19 does not give employers more rights to change the terms of employment. In other words, a CEO can’t be required to clean toilets just because of COVID-19. If that were to happen, it would still be considered a constructive dismissal.

Can a receptionist be required to ask every guest to sanitize their hands? Probably, because this is not a fundamental change to the terms of the receptionist’s employment.

Employment Lawyer Lior Samfiru discusses the right to severance during a pandemic on Season 5 Episode 21 of the Employment Law Show.

What if my employer doesn’t want to employ me anymore?

With respect to the second kind of constructive dismissal, we must consider whether the employer’s actions, taken as a whole, demonstrate that the employer does not want to employ the employee. In this scenario, a relatively minor change to the terms of the employee’s employment may constitute a constructive dismissal when placed in the larger context of all the employer’s actions.

For instance, a lead hand in a machine shop who is disciplined unfairly, demoted to shop assistant, and who has his wages cut by 10% for not following COVID-19 protocols may still have a claim for constructive dismissal. In this scenario, it is important to look at all the incidents surrounding this incident as a whole and not individually. That said, a lead hand who has to take on shop assistant tasks temporarily with no reduction in pay because the rest of the shop has been laid off due to COVID-19 may not have a claim for constructive dismissal. Each case is unique, but even in this last scenario, the law is no different than it would be had the lay-offs been caused by something other than COVID-19.

How do I know if I’ve been constructively dismissed?

Constructive dismissal is a complicated claim to navigate. Often, claims for constructive dismissal fail because the employee waited too long to raise an objection. Or they fail because the employee quit at the first sign of trouble, when the issue had not yet escalated to the level of a constructive dismissal.

It is important to speak to an experienced employment lawyer if the terms of your employment are changed by your employer due to COVID-19 to ensure that you are able to protect your rights. Samfiru Tumarkin LLP is Canada’s most positively-reviewed employment law firm. Contact us today to find out why.