I recently read an article written by Leah Eichler for the Globe and Mail (January 17, 2015) titled: “Do more – without blowing a gasket.”

In the article she referenced a colleague who never sleeps. She stated that he responds to her emails or texts late into the night and regardless of the hour he always comes across as thoughtful and coherent. She also referenced that she felt the pressure to be productive 24/7 despite her belief that it could lead to personal and professional disaster.

As I was reading the article, her comment hit a chord as quite regularly I receive calls from employer clients who indicate that they are restructuring their business and reducing the head count by redistributing the workload amongst the remaining workforce.  My frequent caution to those employer clients is to ask them to really evaluate whether the remaining workforce has the actual capacity to take on the additional work or whether they could be creating a situation where employees are pushed over the edge; unable or unwilling to take on the additional work.

An employee who is pushed over the edge may react in several ways:

1. Proceed to take a stress leave and utilize short-term and/or long-term disability benefits that may be available; or

2. Claim that their original job description has been so modified by the increased workload that they are no longer performing the job they were originally hired for and either:

• demand an increase in pay (and possibly a change in title); or
• claim constructive dismissal.

A claim for constructive dismissal based on an increased workload was exactly what took place in the case of MacBeth v. Heart and Stroke Foundation of New Brunswick [2012] N.B.J. No. 85.  The regional fundraising manager of the charity was constructively dismissed when her employer required her to resume responsibility for a door-to-door campaign that had previously been removed by mutual agreement from her onerous list of duties because it was causing her too much stress and excessive overtime away from her family.

When MacBeth complained in an email dated February 10, 2011 that the stress was too much and she could not again take so much time away from her family, the Director of Revenue Development replied that “sometimes crisis happens and our senior staff need to step in and reorganize/prioritize/delegate to make it happen the best way possible (ideally without stealing too much time away from their family). We need to come up with solutions together”.

According to MacBeth, in a subsequent conversation with the Director, she was told that her only choices were to take the work, quit, or go on stress leave. Consequently, she sent an email to the Foundation that day resigning from her position, stating that she considered it unfair that the organization was asking more time of her, given that she had already accrued 150 overtime hours that year.

The New Brunswick Court of Queen’s bench Judge George Rideau ruled that she was constructively dismissed and awarded her four months’ pay in lieu of notice.

While Ms. Eichler in her Globe and Mail article reports on advice provided by the founder of a company called Powered by Search on how employees might cope with work when they are constantly being pushed to do more which includes: focusing on work that lasts, reprioritizing the to-do lists, and analysing what is urgent and important versus not urgent or not important, the reality is, that from a legal perspective, if employers unilaterally push their employees beyond the scope of the job they were hired for or beyond the limit that the particular employee can handle, a constructive dismissal risk will arise.

Employers can avoid constructive dismissal claims by creating a job description and attaching that job description to the employment agreement for an employee so that it is clearly understood by all parties involved what the level of work associated with the job is. Then employers should adhere to the duties listed.  If there is a change that is necessary to the job duties, the employer should discuss those changes with the employees and, if the changes are significant, the employer should obtain the employee’s written consent to the addition of the duties.  In the event the employee refuses the changes, an employer should refrain from unilaterally implementing them.

Patrizia Piccolo

About the Author: Toronto Employment Lawyer Patrizia Piccolo is a trusted advisor to senior executives in transition; provides strategic advice and training to both large and small employers and their human resources and management teams; and is entrusted by employers and their counsel to conduct investigations into harassment and other problematic workplace behaviour. She also advises employers on employment related regulatory issues including, Employment Standards Act, Human Rights Act, Labour Relations Act and Workplace Safety and Insurance Act compliance.