THE QUESTION
My schedule recently changed from day shifts to working nights three days a week. It comes with a bump in pay, but I’d rather just keep my day shifts at the old rate. My boss says that the day shift schedule I used to work is no longer available. Is this allowed? Do I have to accept the new schedule?
THE FIRST ANSWER
Amiri Dear, senior associate, Hummingbird Lawyers LLP, Toronto
An employer generally is entitled to fix their employees’ work hours to best fit the needs of their organization. This means that employers are permitted to change an employee’s work schedule. However, the changing of your schedule from day to night shifts, even if there is an increase in pay, may constitute constructive dismissal. Constructive dismissal, also referred to as disguised dismissal, may occur when the employer makes significant changes to a fundamental term or condition of employment without your consent.
A finding of constructive dismissal is based on an objective view of the employer’s conduct. If you have been consistently or exclusively working day shifts during your employment, a court may ultimately find that this is a fundamental term of your employment. Therefore, if the employer seeks to deviate from this scheduling, they will need your express consent to do so. If you do not consent to the change in scheduling and the employer insists upon your acceptance, you may treat the employment relationship as terminated and initiate an action for constructive dismissal.
Where constructive dismissal arises, an employee is entitled to a notice of termination. Notice of termination is governed by either the Employment Standard Act (ESA) or the Common Law depending on your contractual terms. If the ESA applies, you will be entitled to one week’s notice for every year worked for the employer. If the Common Law applies, you will be entitled to one month’s notice for every year worked for the employer.
THE SECOND ANSWER
George Huang, counsel, DBH Law, Calgary
Each employer-employee relationship is governed by their employment contract. The change in work shift time may be allowed by the initial employment contract if that was what both parties agreed to. However, based on the way the question was phrased, the employment contract may have been silent on the work shift change.
Assuming the employment contract was silent or did not allow for a time change to a night shift, then the employee may have a cause of action for constructive dismissal. For constructive dismissal to be successful, it needs to satisfy two tests. The first requires a unilateral and substantive change to a fundamental term by the employer such that a reasonable person in the same situation as the employee would have felt that an essential term of the employment contract has been unilaterally changed. The second test requires the employee to prove that on a balance of probabilities, a reasonable observer will infer from the employer’s conduct that the employer no longer intended to be bound by the employment contract.
Based on the initial facts, the time of work can be argued to be a fundamental and essential term of the employment contract, which the employer now unilaterally changed, despite the increase in pay. If the contract was silent on the hours or had day-shift hours, then it can be argued the second test is also satisfied leading to an argument for constructive dismissal requiring pay in lieu of reasonable notice. I suggest contacting legal counsel for legal advice to understand your rights as the next step if this is something you wish to pursue.
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