A recent decision from the Supreme Court of Nova Scotia (Whalley v Cape Breton Regional Municipality, 2018 NSSC 325) confirms that employers have the right to reassign a portfolio of files or projects for business reasons, and this will not constitute constructive dismissal when the job description is formulated in broad terms.
The employee was a senior manager who had been employed by Nova Scotia's second largest municipality for eighteen years.
The employee was hired in 1997 to be the first Economic Development Manager for the municipality. The scope of his position was described in his offer letter as managing "the implementation of economic plans, programs, and services for the municipality." When he was hired, the details of the position were outlined in a job description. The job description was broad and described the employee's role as being responsible for developing "an internal strategy that will enable the municipality to play a lead role in creating a self-sustaining, competitive economy in this region." Early in his tenure, one particular file pertaining to the Port of Sydney development began occupying the majority of his time. The Port of Sydney file continued to be the employee's primary file until May of 2015.
At some point leading up to May 2015, the employee developed ethical concerns regarding the direction of a related file. He did not hesitate to express his uneasiness and he sent numerous emails to his superiors outlining his concerns.
The employee was informed that he would no longer work on the Port of Sydney file that he had been handling since its inception. The file was being reassigned. The employee was advised that he would be responsible for managing a new project.
After receiving the news that his primary file had been reassigned, the employee immediately resigned from his employment. In his resignation email, the employee alleged that the decision to reassign his job duties was motivated by his concern over the "serious flaws" in the related file. He wrote that he no longer felt that his employer trusted him.
He sued for constructive dismissal. The employee argued that his entire role had been taken away from him because the Port of Sydney file had been his major responsibility for the past fifteen years. He also alleged that removing him from the Port of Sydney file thwarted his ability to continue to raise concerns about the related file. He submitted that he had to resign to avoid compromising his integrity. The employer argued that the employee voluntarily resigned his employment. They submitted that the employee's job description was broader than just the Port of Sydney file, and it was within their right to reassign employees so long as the fundamental terms of employment were not impacted.
What did the Court Decide?
The Nova Scotia Supreme Court reviewed the objective test for constructive dismissal. There are two branches to the test:
- The employer makes a unilateral change that breaches an express or implied term of the employment contract and the breach substantially alters an essential term of employment; and
- A reasonable person in the same situation as the employee would have believed that an essential term of employment was substantially changed.
Applying the test to the facts, the Court dismissed the action. The new job assignment that the employee was given involved no change in pay or title. There was also no loss of status or prestige.
The judge found that a unilateral change in projects, even a substantial change, was an implicit part of the job as set out in the job description. The employee had not been hired to perform any one specific function and his expected duties were broad in scope. It was not an express or implied term of his employment that he would always maintain the same portfolio of files.
Good job descriptions drafted in broad terms are critical. The decision hinged on what the expected scope of duties were for this employee. The employer benefited from having a broadly worded job description that provided them with flexibility to reassign work as things evolved. In these circumstances, the employer had the right to reassign files and projects without threatening the employment relationship.
Good job descriptions drafted in broad terms are critical. The decision hinged on what the expected scope of duties were for this employee. The employer benefited from having a broadly worded job description that provided them with flexibility to reassign work as things evolved.
Employers should be cautious when drafting job descriptions. Although it may be tempting to lay out in detail the specific tasks, files or projects assigned to an employee, employers should ensure that they keep the description broad enough to allow them maximum flexibility. Employers also may wish to consider including express language permitting them to amend job duties to avoid potential constructive dismissal claims by employees.