However, these changes can sometimes lead to conflictual situations, especially if they significantly affect the essential terms of an employment contract.
When such a change is made unilaterally and fundamentally degrades or alters the nature of the employment, it is called constructive dismissal.
This concept, which is well established in Quebec case law, deserves special attention, particularly in the context where an employee’s duties are substantially modified without his or her consent.
The purpose of this article is to explore in depth the notion of modifications of duties in connection with constructive dismissal, by providing a detailed analysis of the legal criteria, the necessary evidence and the remedies available in Quebec.
The Concept of Constructive Dismissal in Quebec
Under article 2094 of the Civil Code of Québec, an employment contract is a commitment between an employer and an employee, in which the tasks to be performed as well as the general conditions of employment must be respected by both parties.
The basic principle is that an employment relationship must be stable, and the essential terms agreed upon at the outset cannot be substantially changed without the employee’s consent.
One of the foundations of this stability is that the employee must be able to count on a certain predictability of his or her tasks, salary and working conditions.
Constructive dismissal occurs when, without explicit dismissal, an employer modifies an employee’s working conditions in such a way as to make his or her position unsustainable or significantly different from what was initially agreed.
In other words, if the employee is unable to continue working under the new conditions, these changes can be assimilated to a breach of contract disguised as a contractual modification.
Quebec case law considers constructive dismissal to be a violation of the implied terms of the employment contract, and constitutes a form of dismissal.
Key Case Law on Constructive Dismissal
The concept of constructive dismissal has been solidified by several landmark decisions in Canadian and Quebec jurisprudence.
One of the most notable cases is that of Farber v.
Royal Trust Co. (1997), where the Supreme Court of Canada set out clear criteria for constructive dismissal.
In that case, the Court noted that any unilateral and substantial change in an employee’s working conditions can be interpreted as constructive dismissal, even if the employer has not explicitly terminated the employment contract.
Over the years, Quebec courts have clarified this concept.
They consider that changes that affect the essential terms of the employment contract are the most likely to result in a disguised termination of the contract.
These essential conditions include not only salary, hours and location of work, but also job responsibilities and the tasks assigned to the employee.
The nature of the substantial changes
Substantial changes in working conditions are distinct from minor or temporary adjustments that can occur naturally within a company.
Minor changes may include temporary reassignments or changes in positions as part of normal operations.
However, a substantial change occurs when the employee’s duties change in a way that fundamentally alters the nature of their work, their position in the company, or their employment status.
For example, if an employee in a management position has his or her responsibilities reduced or if he or she is assigned lower duties, this can be interpreted as a breach of the essential terms of the employment contract.
Quebec courts have ruled that substantial changes in duties that reduce an employee’s autonomy or authority may constitute a degradation of his or her role, and therefore constructive dismissal.
Tasks as a central element of the employment contract
The tasks assigned to an employee are one of the fundamental pillars of the employment contract.
They define not only the role and function of the employee within the company, but also their status, professional identity and sometimes even career development.
When these duties are unilaterally modified by the employer, without the employee’s consent, it may constitute a breach of the essential conditions of employment.
Let’s take the example of an employee hired as a project manager, responsible for overseeing a team and making strategic decisions.
If that employee is suddenly removed from his or her managerial responsibilities to be assigned to administrative or subordinate duties, this could constitute an unacceptable deterioration of his or her position, and consequently, constructive dismissal. 
Case law on changes in duties
Quebec courts have been confronted with several cases where changes in duties have led to claims for constructive dismissal.
A key example is the Dussault v.
R where the employee, as a result of internal restructuring, has seen his or her management responsibilities significantly reduced.
The court found that this substantial change constituted a breach of the essential terms and conditions of employment, and that the employee was correct in treating it as constructive dismissal.
In another case, an employee who had been unilaterally transferred to another position without his consent was able to prove that the deployment constituted a substantial change in his duties, and therefore constructive dismissal.
These examples show that the courts are very attentive to situations where an employee’s professional responsibilities are modified without his or her explicit consent.
Evidence of Breach of Essential Conditions of Employment
In cases of constructive dismissal, the burden of proof rests with the employee.
This means that he must show that the changes made to his duties are not only substantial, but also represent a direct interference with the essential conditions of his employment.
Consult your labour and employment lawyer to find out if your duties are subject to a breach of the essential conditions of your employment.
This evidence can be presented in a variety of forms, including:
- Contractual documents (the initial employment contract and any written changes to the terms and conditions of employment).
- Testimonials from other employees or co-workers.
- Correspondence between the employee and the employer regarding new duties or changes made.
- Job descriptions comparing responsibilities before and after the change.
Quebec courts require that the evidence be clear and convincing.
This implies that the employee must be able to demonstrate that the changes are not just minor or temporary adjustments, but that they significantly affect the nature and substance of their employment.
Court Assessment Criteria
The Quebec courts take a rigorous approach to assessing evidence of constructive dismissal.
They look not only at the objective facts (such as job descriptions and assigned responsibilities), but also at the context in which the changes were made.
For example, if the employer acted in good faith in justifying the changes or if they consulted with the employee before imposing the changes, this may influence the court’s decision.
Another decisive criterion is that of proportionality.
The courts question whether or not the changes made are proportionate in relation to the overall situation of the company and the employee’s initial contract.
Changes that have the effect of substantially reducing the employee’s responsibilities or authority are more likely to be considered constructive dismissal.
Remedies Available to Employees Who Are Victims of Constructive Dismissal
When a court recognizes that an employee has been the victim of constructive dismissal, several recourses are available to it.
Employees can claim:
- Compensatory damages , covering lost wages, benefits, and other benefits associated with their employment.
- In some cases, the
- The court may also order the reinstatement of the employee to his or her original position if deemed appropriate.
Prevention Strategies for Employers
Employers can avoid constructive dismissal claims by adopting transparent and fair management practices.
This includes:
- Drafting of specific contractual clauses that allow for reasonable changes in tasks in the event of restructuring or reorganization.
- Obtaining explicit consent from employees before making any material changes to their job responsibilities.
- Proactive communication with employees, clearly explaining the reasons for the changes and the potential impacts on their work.
Constructive dismissal is a violation of the fundamental rights of employees in Quebec, particularly when modifications to duties are imposed without their consent.
The case law shows that any breach of the essential conditions of employment, such as the unilateral modification of duties, can open the way to claims for constructive dismissal.
Employees must be aware of their rights and be prepared to prove that changes to their position are substantial and unacceptable.
At OLS Avocats, our labour law experts are available to assist employees in these complex procedures and offer them tailor-made legal support.
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