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The question

My department is split into two teams. I was transferred from one team to the other without notice and into a significantly different role, in which I have no interest. After some time, I asked the head of the department if I could move back into my previous role but his response was that I should look for another job. Is this legal?

The first answer

Busayo A. Faderin, senior associate lawyer, Monkhouse Law, Toronto

The short answer to your question is that it depends. Employers have a right to make business decisions as necessary to direct their organizations. However, those decisions must be made against the backdrop of the contractual employment relationship.

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If the new role you have been placed in, without your agreement to the change, is substantially different from the role you initially had, it could potentially be considered a constructive dismissal at law. A constructive dismissal occurs when there has been a fundamental change to a term of the employment agreement and the change is made unilaterally by the employer without the employee's consent. As a result, the employee may be forced to quit. Quitting under such circumstances, however, is not considered a resignation.

It’s important to act fast, yet wisely, if you think you may have a constructive dismissal claim. Time is of the essence and you must act strategically. If you continue to work in the new role for an extended period of time, despite your initial request to return to your original position, you may be considered to have acquiesced to the changes. This means you would be considered to have accepted the new changes and conditions to your role and will have forfeited any claim of constructive dismissal. Given the complexity of these claims, getting prompt legal advice that accounts for your individual circumstances is key. A lawyer can assist with explaining the strengths and weaknesses of your claim and help you with your exit plan.

The second answer

George Huang, lawyer, Guardian Law Group LLP, Calgary

Under employment law, this situation may be grounds for constructive dismissal. Constructive dismissal occurs when the essential terms of employment have been substantially changed. This analysis would be heavily fact-driven depending on how significantly your role has changed.

You need to review your employment contract to see whether this new role is contemplated in your employment contract. If your employment contract stipulates that you may be required to perform the tasks in your new role, then you have a weaker case for constructive dismissal. The caveat is that the new role does not result in any decrease in salary, a significant change in work hours or work location, or decrease in job title prestige, or any other detriment to you. However, if your employment contract does not contemplate the tasks outlined in your new role, then you have grounds for constructive dismissal. An example of constructive dismissal due to significant change in duties is if an employee was hired as counsellor and later unilaterally transferred to clerical duties.

I would recommend you discuss your disagreement with the role change with your human resources department. You can explain how your employment contract is for a different role and outline your concerns. If they refuse to return you to your previous role, then you can seek a constructive dismissal claim. If you are successful in claiming constructive dismissal because your employment duties have significantly changed, then you are eligible for a severance package and likely other monetary remedies from your employer.

Have a question for our experts? Send an e-mail to NineToFive@globeandmail.com

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