HR managers need to think carefully before modifying a worker's role or introducing new responsibilities, says FCB partner and director, Jessica Fisher.
Employment contracts with clauses such as, "You may be asked to do other duties from time to time that are within the skills of your competence and experience", provide some "wriggle room", but depending on the extent of the changes and the worker involved, there could still be a legal risk, she says.
If new responsibilities are not incidental to a worker's role, but transform it to the extent it could be viewed as an entirely new position, the modification could amount to constructive termination.
"Of course, if the person agrees to do it, then they've varied the contract by agreement, and that's fine," Fisher says, but an employer cannot unilaterally vary a contract of employment.
Just as a worker can't say, "I don't feel like doing that job today, I'm going to go off and do another one," without the employer's approval, an employer can't turn around and say, "I don't need you to do that job now, I'm going to give you a totally unrelated job," without their agreement, she explains.
Depending on the situation, an employer might get away with saying, "We're just varying some of the incidental parts of your job", but if the job is changed too dramatically, a resentful worker could have a case for unfair dismissal.
For example, a manager with low-grade HR responsibilities might be told that, due to a restructure, roles and responsibilities have been rationalised and they must now take on management of OHS, Fisher says. The extent of the legal risk will depend on the worker's response, the drafting of their current employment contract, and the extent of the proposed changes.
Some workers "lap it up", others are resentful
It follows that HR managers should avoid "just romping in" and saying to a worker, "by the way, we're going to get you to do this now". Instead, they should "sell it to them", taking time to explain the reasons behind the modification and how it will advance the employee's career.
When it comes to change, "some people lap it up and love it" but others become resentful - particularly if they are not managed well, Fisher says. "From an employer's perspective, how much you'd push down on the person would depend partly on the legal risk," and partly on the degree of change.
Depending on the situation and the worker, an HR manager might sit them down and say, "Look, as you know we're doing some rationalisation and restructuring, and while sometimes it can be challenging, it's also got a whole heap of exciting opportunities for people. Knowing that you're an upwardly mobile and interested person... keen to enhance [your] skills and professional development, we actually want you to take on a few responsibilities," she suggests.
"You'd say 'it is peripheral to what you do now, it's not a significant change, but nevertheless it is something that will definitely be great on your CV'." Be careful not to make it sound too much like a choice (it might be turned down), or a promotion (which could imply a wage increase), she says.
Before approaching the worker, HR professionals should ask:
How can I prepare myself to sell it to them?
What do I think their response will be?
How can I get their manager on board to help send the same message?
How much will it change their role?
Will it amount to changing their job?
Do we give them an incentive (such as a remuneration increase) or simply sell it as a great opportunity?
Do we need a new contract to reflect the change?
What resources can we offer to support and equip the person? and
Should we set up a follow-up review?
New rules can also incur risk
A new requirement does not always involve new responsibilities.
Even something simple - like a new rule which states that wearing uniforms is compulsory - could incur legal risks, Fisher says.
In this case, HR might need to ask:
What flexibility is there within the employment contract?
Do any existing policies envisage this might be a requirement?
What is the reason for the rule? Is it for hygiene or OHS purposes?
Is there room for consultation with workers?
Who will pay for them? and
Are there any religious or cultural implications?
If in doubt, seek legal advice, Fisher says, because knowing whether or not you have "a legal leg to stand on" will shape how you manage the change.
If the HR manager knows they have every right to enforce a new requirement, and tries to "dress it up" only as a courtesy, they can probably afford to side-step consultation, "cut to the chase" and say, "Here it is, your contract says that we can require [this]; let us know if you have a problem with it; otherwise this is the story".
But if an ultimatum could attract legal risk, getting workers on side will be crucial. Either way, "the challenge is not just keeping [the employees], but keeping them engaged and positive", Fisher says.
