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See a Need - Fill a Need. Employers Obligations when Changing an Employees Duties.

You may have noticed as an employer the job market is quite fluid, there's a lot of movement at the moment - especially when it comes to employees, and sometimes quite out of the blue!

When this happens, what are your obligations as an employer if you choose to redistribute the workload while you find your new star employee?

1. Check the facts

In this case your first port of call is the relevant employment contract. Most contracts when done well, have a clause requiring the employee to ''perform all duties assigned by their employer'' as well as normally stating ''their position or reporting can be changed as required by the company''. Some wording maybe more vague or specific depending on the contract and also may include add on's like ''in line with the employees skills and experience'', whatever the case may be ensure you check the wording before proceeding with any actions.

It is also very important to note and be aware that without this clause which gives the employer flexibility, any changes to an employee's position could constitute a breach of contract.

Verbal agreements are also legally enforceable (as long as it covers the four elements of a contract), although verbal agreements are not normally recommended in line with employment contracts, due to the potential confusion over recollection of terms, making resolving any type of dispute a he said, she said type situation.

While it is possible to make a verbal employment contract enforceable, it is best practice to have a written contract to protect your business interests. Many employment lawyers or HR consultants will draw up a contract suitable to your business needs or FairWork also has a basic level contract building tool.

2. Gain the Employees Consent

Consent is a big one, even if the employer via the employment contract has flexibility to make changes, if this is done without the employees consent it can be quite a costly exercise, as in the case of Andrew Whittaker v Unisys Australia Pty Ltd [2010] VSC9. A previous article of ours goes into more detail of the workplace consultation process, if you would like to know more.

It is also a good idea to bear in mind that a complete or partial rewrite of the employee's position description would be open for a court or tribunal to find that the role is in fact legally redundant. Which in turn would be justifiable for the employee to request a redundancy pay-out.

In Summary

Taking all the above into consideration to protect your business and your employee(s) wellbeing with an increase of duties some good first steps are:

  • Check the appropriate employment contract and relevant award as a guide.

  • Consult your employee(s).

  • If you need assistance reach out to a specialist like one of our HR Coaches.

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