Need to change an employee’s job description to cover for departing staff? Make sure you have your legal bases covered.
With the Great Resignation starting to play out in some sectors, employers may have to distribute exiting employees’ workloads to remaining staff members to keep the wheels turning until they can get new talent on board. As part of that, employers need to consider the extent to which they can unilaterally change an employee’s role to include additional or different work.
With this in mind, here are some things HR professionals should keep in mind when changing an employee’s job description.
1. Check the contract
From a legal perspective, the first thing to check is an employee’s employment contract.
A well-drafted employment contract should contain a clause requiring the employee to perform all duties assigned to them by an employer, and outline that their position or reporting can be changed at any time as required by the organisation.
Sometimes that clause will require that any change in duties or position must be ‘reasonable’ or in line with the employee’s skill and expertise. So it’s important to check the wording.
Without a clause that grants the employer this flexibility, any unilateral change to an employee’s position may constitute a breach of contract.
2. Make changes with the employee’s consent
While courts have supported the ability of employers to unilaterally change the positions of employees, employers should still tread with caution.
Even if the contract allows this flexibility, in some cases, courts have also found that major unilateral changes to an employee’s role without consent can constitute a repudiation of the entire employment contract. (For example, see Andrew Whittaker v Unisys Australia Pty Ltd.).
It is also open for a court or tribunal to find that a change of duties is so substantial that the original position held by the employee is, in fact, legally redundant. In other words, the employee’s original role isn’t required anymore, which can lead to the employee demanding redundancy pay.
3. Understand your legal obligations to communicate change
Even if the contract allows for some or all of the flexibility needed to make the required change, applicable modern awards and enterprise agreements should also be considered.
For example, modern awards can require that employees and their representatives be consulted if there is a proposal to change the regular roster or ordinary hours of some employees, or if there is a major workplace change that will have significant effects, such as job restructuring.
As HRM previously reported, this consultation should include: informing employees about the change, giving them the opportunity to offer their input and genuinely considering their feedback before proceeding with the change.
Other considerations
Obviously, many of the potential legal headaches can be cured by the relevant employee actively agreeing to the change. Even if this happens, employers still have ongoing obligations to employees who take on extra work.
There may be financial considerations, such as an employee moving up an award classification and being entitled to higher pay rates, or they could be eligible for ‘higher duties’ allowances.
Even if the employee isn’t covered by an award or enterprise agreement, employers should still be mindful that additional hours outside the 38-hour week may not be considered ‘reasonable additional hours’ and could lead to employees burning out. Employers must comply with their work health and safety obligations, and ensure that additional hours or work don’t result in an excessive and unsafe workload for the employee.
Chris Hill is the Founding Principal Solicitor at employment law form Stadium Legal. This article was first published in the February 2022 edition of HRM magazine.