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Welcome everyone this is Amer Mushtaq from You Counsel. Today, we’ll talk about a topic, which has been in the news lately and you may have noticed that there has been discussions about bank employees facing significant pressure from their respective banks, respective employers, to sell different financial products to customers even though that may not be their primary role. And what is the impact of that pressure on their performance of duties on and on their mental health and other situations?

So, we picked this topic because it’s current and it’s relevant. What we’ll do is we will explain to you the different legal principles that are engaged in the scenario and we’ll explain to you different rights and obligations in this specific scenario, but what we’ll do is that we’ll expand that discussion to explain to you that if your duties are changed in similar ways, then what kind of legal principles come into play and then you get a basic understanding of the Employment Law application in this context.

Will begin with our usual disclaimer that this course is not legal advice, so, if you have any specific questions you must contact a legal professional.

So, the scenario is the basic scenario that we just talked about, that the employer is requiring its non-sales employees to sell certain products. And I use the word non-sale because if you are a sales person, then obviously your job is to do that – to sell those products. But what happens if you are training expertise and previous work experience is unrelated to sales … what happens in your situation when you are asked to sell certain products? And then not only the duties are added to sell products but there is a mounting pressure to deliver sales targets and then there’s a constant increase in those targets, so, there is a significant pressure.

This may also apply to sales employees too when their targets are significantly high and in some cases practically unachievable … then they may fall into this category too, so, both of those scenarios are being covered in this topic.

So, what happens if you are in the situation, what are your rights and obligations as an employer and as an employee? The first thing that you want to keep in mind is that as an employer, the employer has a basic implicit right to manage its own business, you know the employer is involved in that business for the purposes of being successful whether it’s a bank or any other manufacturing facility or any other employer, they have a right to manage their own business. So, when an employer is trying to sell additional products it may be because the competition is very high and the employer has to make additional efforts to continue to improve its sales quota.

On the other hand, the employee has an obligation to advance the employer’s business interests, so, this is a fundamental duty that is imposed on an employee that once the employee signs up to work for that employer his or her job is to promote the employer’s business interests. So, with those two fundamental rights and obligations we also want to explain to you that there are some additional rights and duties that come into play in this specific scenario.

So, one of employer’s obligations also is to provide work opportunities to its employees, I’ll give you an example of that. So, for instance, if you are a computer programmer specializing in, you know, some language and you were hired to do that job, it is the employers job to provide you with appropriate work. So, it is not enough for the employer to hire you, pay you your salary, give you your benefits, but not provide you with any work … just ask you to come in spend the eight hours and then go home and not ask you to do any work. Then that obligation is not fulfilled, because it’s not only that the employer has hired you, but the employer has hired you to do certain specific tasks and the employer is required to provide you with those opportunities. So, that’s an added obligation that is imposed on employers. And then there are cases that also suggest that not only that the employer has to provide work opportunities, but the work should be of such a nature that the employee should derive job satisfaction from that work. So, these are sort of significant duties, which are not explored in a lot of detail in our Canadian Jurisprudence, but they have been touched upon to the point that academics and legal scholars have at least discussed these duties in Canadian Employment Law.

So, when we say that an employer has an opportunity to provide work opportunities and job satisfaction in this scenario the sale scenario that we’re talking about, obviously, if the employee is conducting duties is performing work which it has no experience, no expertise that’s not what the employee was hired to do, then obviously it’s not the kind of work opportunities that the employee signed for. So, employer is in breach of that obligation to provide appropriate work opportunities. And similarly, the next step is that if the work is of the nature that is causing unnecessary anxiety and pressure and stress to the employee, then the employee may not be receiving the job satisfaction that he or she is entitled to. So, this may give rise to potential legal claims, which in the near future, we may see that Canadian law firms may commence some court actions with respect to these scenarios. So, I’m going to cover some of these legal claims.

The first one that is the most common one is called Constructive Dismissal. We have a separate lecture on Constructive Dismissal by all means check that out. But, essentially in a Constructive Dismissal scenario, what the employee is claiming is that, the claim is that you the employer have changed my duties fundamentally such that our basic employment contract is breached. Because I was required to do certain things and you have fundamentally change those duties and so our initial contract is breached and you are required to give me my severance or Reasonable Notice of Termination. And there are complications to that scenario but Constructive Dismissal is one avenue, which is commonly applied in explored in the scenario that I have explained to you.

Another cause of action another claim could arise from what’s called an Intentional Infliction of Mental Suffering. And this is sort of a tort claim, and what this means is that, whatever the change of duties in this case, specifically additional sales obligations and higher quotas that are unachievable, if that has caused the employee mental health issues either stress, anxiety or any other mental health problems such that employee has actually suffered, either mentally or physically, then, in that situation, the employee may have a claim against the employer under the category of Intentional Infliction of Mental Suffering and then seek damages for the employer’s conduct.

Workplace Harassment is another legal claim that may arise and that in Ontario at least comes under Occupational Health and Safety Act. And the Occupation Health and Safety Act requires that it’s an employer’s obligation to provide an employee with a harassment free work environment. It’s not only under the O.H.S.A. but we also believe that it’s a common law obligation on the employer to provide an employee with a harassment free workplace. And so it can be argued that the stress of the work, which is unreasonable. Which is unachievable, with respect to sales targets, or the kind of work that the employee has had no training or was not hired to do, create a situation, which is harassing for the employee, and then that may give rise to a workplace harassment claim.

Another claim that may arise is called Damages for Loss of Psychological Satisfaction Derived from Work. There has not been, in my experience, in my reading of the law, there has not been a case that has been argued on this point but authorities, the academics are at least discussed that this is a potential avenue which may be explored, and this may be the time where innovative lawyers may come up with these kind of claims and pursue and see whether the court will award any damages under this category.

So, what you want to take away from this lecture is that if these kind of scenarios are happening to a large number of employees, as we know, in with respect to the banks that there are hundreds, if not thousands of employees, who may be experiencing this then there’s a potential for a class action lawsuits and there are law firms that specialize in doing that. So, that may lead the way in these kinds of claims against employers.

You also want to keep in mind that in this in these kind of scenarios, that the law is still developing. With respect to Constructive Dismissal we have a lot of jurisprudence and so the, in that case the applications are not that complicated, but the other legal claims that I have discussed they are yet to be tested in many scenarios, especially with respect to the last part where I discussed the Damages for the Loss of Psychological Satisfaction. Now, this one has not been tested and also in the Workplace Harassment context this specific scenario has not been tested. We have ample case law with respect to Constructive Dismissal and Intentional Infliction of Mental Suffering.

So, what that means is you want to keep your eyes open and see if there’s more cases that are coming out. And finally, what you want to keep in mind is that although we took the example of a sale scenario in this case, the legal principle will apply to non-sale scenario. So, how do you want to see this lecture is that there is a situation where you, the employee, had specific training, expertise to do certain tasks, and the employer changes your duties without providing you with significant training or without providing you with proper targets that are achievable. In that situation, you may have a legal claim for the similar legal doctrines that we have talked about.

So, hopefully this is helpful to you in understanding what’s happening with respect to the recent scenario of bank employees, and it gives you some understanding of the larger context in which the duties are changed significantly.

Thanks for watching and if you have any questions or comments by all means contact us through one of these ways that we have listed and we look forward to seeing you in the next lecture.