September 14, 2022

Temporary changes to the performance of job duties may not amount to constructive dismissal

In certain circumstances, an employer may temporarily change how an employee performs the duties of their job and it will not be considered constructive dismissal.

In constructive dismissal cases, an employee must prove the employer evinced an intention to no longer be bound by the employment contract, and the employee can do so in one of two ways. First, by showing the employer made a unilateral change to a fundamental term of the employment contact, or second, by showing the employer’s cumulative conduct or series of actions objectively evinced an intention to no longer be bound by the employment contract.

In Farkas v Island Lake Resort Group (2003) Inc., 2022 BCSC 1282 (CanLII), the former employee, Mr. Farkas, argued that the employer changed the fundamental duties of his employment and exposed him to a humiliating work environment, both of which amounted to constructive dismissal.

Mr. Farkas was the executive chef of a remote backcountry ski lodge near Fernie, BC. In the fall of 2019, other kitchen staff complained about his communication skills and the employer warned him about his behaviour. In January of 2020, Mr. Farkas’ spouse, who worked for the same employer, was dismissed. Understandably, he was upset, communicated his displeasure to the employer and eventually took a medical leave until March 2020.

Coincidentally, Mr. Farkas’ return from medical leave coincided with the beginning of the COVID-19 pandemic and the closure of the ski lodge. As a result, the employer asked him to not attend the lodge and to perform certain tasks from home. As well, given the pre-existing complaints about his communication skills, the employer asked Mr. Farkas not to speak with staff and to develop a communication plan to be presented at a staff meeting scheduled two days after his return to work.

The day after receiving these instructions, Mr. Farkas emailed management and asserted that the employer’s conduct amounted to constructive dismissal. At trial, the court disagreed.

The court determined that the requests to not attend the workplace and not speak with other staff were only temporary changes to how Mr. Farkas carried out his work, which were implicitly allowed in the employment contract, and did not amount to fundamental changes to the contract. Instead, the court found he had precipitously resigned without determining the actual impact the temporary changes had on his employment. In the circumstances, the court determined it made sense to ask Mr. Farkas to stay home given the lodge closure caused by the COVID-19 pandemic and it also made sense to have him refrain from speaking with staff until the meeting could be held to specifically address his communication issues.

The court also determined that the employer’s cumulative behaviour, including the dismissal of Mr. Farkas’ spouse, the lack of communication during a medical leave and the imposition of temporary changes to the employment contact, did not create a toxic work environment. The court found that Mr. Farkas’ perceptions had been tainted by his wife’s dismissal, and that an objective reasonable person would not have perceived the employer’s cumulative actions as intention to no longer be bound by the employment contract.

In conclusion, while employers do not have unbridled discretion to unilaterally change the terms of employment, in certain circumstances the employer has the implicit right to make truly temporary changes to the manner of how work is performed, such as temporary changes necessitated by the COVID-19 pandemic. However, courts will assess the specific circumstances of each case to determine whether the employer’s conduct constitutes a constructive dismissal and employers should proceed with caution when making any changes to employment terms and conditions.


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