Damaso v. PSI Peripheral Solutions Inc.: When Too Much Work Amounts to Constructive Dismissal

Damaso v. PSI Peripheral Solutions Inc., 2013 ONSC 6923 (Ont. S.C.J.) is an interesting case involving a claim for constructive dismissal essentially resulting from the employer giving the employee too much work.

Facts of the Case

Mr. Damaso started working for PSI Peripheral Solutions Inc. (“PSI”) in May 1999 as a Field Service Technician and Computer Technician.  According to the job description, his position involved servicing in-house LAN networking, related software and hardware issues, and PSI’s product line of computerized high-speed envelope printers.

Over time, PSI progressively gave Mr. Damaso more duties and responsibilities.  Eventually, Mr. Damaso raised concerns over the inappropriate workload and the feeling that he was working beyond capacity, particularly in the absence of a pay raise.  In response, PSI asserted that the additional duties were simply a natural extension of Mr. Damaso’s position when he was first hired.

Mr. Damaso continued to express his concerns and three months later, on May 13, 2011, PSI gave Mr. Damaso a letter informing him that his employment would be terminated after twelve months of working notice.  During the working notice period, Mr. Damaso was required to continue to perform all of the responsibilities previously assigned to him by PSI.

On May 15, 2011, Mr. Damaso went on sick leave and sought counselling on the recommendation of his family doctor.  After the last of the counselling sessions, on September 26, 2011, Mr. Damaso wrote to PSI and took the position that he was constructively dismissed.

Issues Before the Court

At trial, Justice McEwen concluded that PSI constructively dismissed Mr. Damaso by way of the May 13, 2011 termination letter which required him to continue to perform the additional duties.  At paragraph 22, Justice McEwen wrote “these extra duties could not possibly have been contemplated in the 1999 position description.  Furthermore, I accept that the additional duties that were put on Damaso by PSI… did overburden him to the extent that he was unable to complete all of the tasks.”  At paragraph 33, the judge stated “PSI had altered his position with the company in a fundamental way by adding to his duties when it was undergoing financial difficulties to the extent that he could no longer meaningfully satisfy the job requirements given the hours of work required to do so.”

Mr. Damaso was 47 years old at the time that his employment ended.  He was a mid-level employee with 12 years of service.  Although he had no direct reports, his technical position was important but not crucial to the financial performance of the company.  Based on the various Bardal factors, Justice McEwen concluded that a notice period of 12 months was reasonable.

Practical Considerations

The take-away from this decision is that employers should be careful about the extent of additional duties that they give to employees.  The law recognizes that employers are entitled to some latitude in order to meet the needs of their business.  The question, however, is whether or not the extra duties constitute a fundamental change to the job description that the employee previously agreed to.

With the coming of a new year, many companies seek to create efficiencies in order to achieve new goals and targets.  One way is to streamline the workforce and re-shuffle the duties of their employees.  However, unless carefully managed, this strategy can lead to problems, including constructive dismissal claims.  There are ways to avoid these problems and competent employment counsel can assist in this regard.

This article is intended only to provide general information and does not constitute legal advice.  Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.