Changing An Employee’s Position description
Changing an employee’s position description is one of these complex situations where employers often wonder whether they are within their legal right under the contract to do so or not. Furthermore, nowadays it is a common occurrence for companies to find themselves in a position where they may need to make adjustments to their employees’ position description, whether it may be to cover for departing team members by re-assigning work to existing employees, assigning an employee to a new worksite, changes to the industry or organizational changes. At a glance, these could be perceived as simple re-allocation of work or pertinent actions required for the business to service its operational needs, however, ask yourself the question of whether any of these changes lead to a variation to the existing employment contract? Examples of other important questions are whether the salary has changed, is it a unilateral change thrust upon the employee, or has the change stripped the original role of its primary functions? Could you also benefit from HR Consulting?
Equally, employees aren’t always necessarily aware of how the nature of their employment contract changes when there are significant changes to their roles and their position descriptions change. Moreover, employers may question the validity of the initial employment contract when they need to significantly change duties.
In this article, we’ll be looking at the different cases regarding a change in an employee’s position description and how HR Consulting might be of value in this case. Do remember that there are multiple points to evaluate and consider, before changing an employee’s position description, some of them are as follows.
Check The Employment Contract
Through HR Consulting, the contract, relevant award, or enterprise agreement should be reviewed to establish whether duties or work location can be varied. First and foremost, you should take a look at the employment contract before changing the position description. A well-drafted position description and employment contract should contain details regarding potential changes in the employee’s duties or work location.
In general terms, an employee must perform duties that an employer reasonably requires from them, however, there are limitations to changes that are allowable. Changes to an employee’s duties need to be ‘reasonable’ within the scope of their position and skills. In instances where the changes are significant and negate the original role, it would be conceived ‘unreasonable’ and it may eventuate in termination of an employment contract or a redundancy. By ‘unreasonable’ it is implied that the essence of the position changes, as for example a Receptionist cannot be reasonably expected to undertake accounting responsibilities. It would however be ‘reasonable’ for the Receptionist to learn a new scheduling system as it is in line with the Receptionist’s skills set.
Some employment contracts may even require employers to change the position description only to the extent of the employee’s skillset and expertise. However, if upon checking the employment contract, you do not come across such a clause, any unilateral changes that an employer makes may become a breach of contract.
Conversely, in some industries, it is common for employees to move around frequently (as for example business development roles) and if the employee is aware of such practice at the start of employment, it could be concluded that they impliedly agreed to this arrangement as part of the contract and this does not constitute a repudiation of the employment contract by the employer.
Consult With Your Employees
As seen in the case of Whittaker v Unisys Australia Pty Ltd., the courts have found that despite the flexibility of a change in duties in the employment contract, employers may still need to make adjustments to their approach by consulting with the employee and seek an agreement. As stated earlier, any major changes in duties may constitute the repudiation of the employment contract as a whole or create a redundancy. In the instance where the position description outlines flexibility to make adjustments to an employee’s position, it is by no means a green light to exact unilateral changes to an employee’s role and it will also result in the repudiation of the employment contract or create a redundancy.
Therefore, employers need to tread with caution even if such a clause is present in the employment contract or position description. Appropriate HR Consulting services will best advise and guide you through this process to ensure you can navigate these murky waters. In addition, unilateral changes render the original position of the employee redundant and they may well become eligible for substantial redundancy pay.
Communicate The Change With Employees
In addition to the clauses mentioned in the employment contract, employers should also keep in mind the enterprise agreements and applicable modern awards. Even in the case where the contract allows flexibility regarding the matter, the applicable modern awards and enterprise agreements should not be overlooked. There may be legal obligations for the employers regarding making changes in the employment contract.
For example, modern awards may require that any major change that can substantially change the nature of the original job should be clearly communicated to the employees and their representatives. Moreover, they may also require to consult employees in matters of major workplace changes such as working from home, change in hours, and other major job restructuring matters. Employees should be informed of such changes and given the opportunity to communicate their proposals about the matter.
Remember that it is always good practice to document changes to an employee’s work hours or their role and responsibilities by documenting these changes by reissuing a position description or making variations to an employment contract as needed.
Other Considerations Regarding The Employee
If the relevant employee agrees to the proposed changes that are about to occur in their employment contract, it aids the process but does not adjudicate employers of all responsibility in establishing whether the change was so extensive that the old contract is replaced by a new one as noted in Quinn v Jack Chia (Australia) Ltd . They held that a court would be more ready to hold that “a new contract had replaced the old or at least that the old contract, as varied, contained terms objectively appropriate to the new relationship created”. Irrespective of whether an agreement has been reached between the employee and employer regarding changes to duties and responsibilities, it is a crucial process for employers to pay closer attention to when attempting to determine whether the old contract still stands or a new relationship has now formed.
Employers also need to consider other obligations they need to uphold regarding the employee, for example, there can be financial obligations. Employees can become eligible for higher duties allowance or higher pay rates when the nature of their job moves up a classification in the relevant award. These financial obligations must be looked over before any substantial changes are made in the employment contract.
This extends to additional hours of work and some of these obligations are relevant even if the employee is not covered under any enterprise agreement or award. If the changes in an employment contract result in a variation to work hours, the award or statute should be reviewed, as they govern what changes can be effectuated even if mutual consent has been reached.
Generally, employers can look towards the employment contract, relevant enterprise agreement, or award in order to understand the clauses governing a change in duties, work location, promotion, and standing down of an employee. In most instances, checking the employment contract, consulting with the employee, communicating the changes to them, and then effectuating the change, would be considered best practice.
Variations to an employment contract can be made in accordance with the clauses within the contract itself, relevant enterprise agreement, or award. Remember that changes to duties or work location do not necessarily mean that the original contract has been terminated or that a new employment contract has come into effect.
At HR Expertise, our HR Consulting in Melbourne and across Australia provides assistance in understanding whether you can make changes to an employee’s position. We partner with our clients to understand the changes they want to implement and work with them on an appropriate solution. Contact us at HR Expertise, we would love to work with you.