THE QUESTION
I’m a student working part-time as a server. I asked for reduced hours for four months so I could take a co-op position. They said they couldn’t accommodate the reduced hours and that I would have to resign and reapply for the job after the co-op term. I did that, but I wasn’t rehired. I later noticed that my record of employment says that I didn’t plan on returning to work, when I explicitly expressed that I did want to return. Do I have any legal recourse in this situation?
THE FIRST ANSWER
Kathleen O’Brien, associate, Carbert Waite LLP, Calgary
Unless your employer guaranteed you would have employment upon the completion of your co-op term, or if the refusal to rehire you was based on some form of discrimination, there is no legal recourse. While employers are required under human rights law to provide accommodations such as reduced hours in limited circumstances, including medical disabilities and family obligations, such protections do not extend to requests to accommodate student or alternate employment responsibilities. Employers are not required to accommodate employee preferences on schedules or hours.
If your employer promised you could return to your position, and later broke that promise, then pursuing damages may be possible either as a breach of contract claim or a claim for misrepresentation.
The purpose of your Record of Employment (ROE) is to provide information on employment history and is primarily used to apply for Employment Insurance benefits. Service Canada uses the ROE to determine eligibility for EI benefits. Because you voluntarily left your job, you likely wouldn’t be entitled to receive EI benefits. Whether or not you intended to reapply to your old position does not impact EI entitlements.
To correct an error on an ROE, you can ask the employer to change it, or you can report the error to Service Canada. While it may be concerning that information on your ROE doesn’t align with what you told your previous employer, such an error is unlikely to have any impact on you.
THE SECOND ANSWER
Christopher Gibson, associate lawyer, Ryan Edmonds Workplace Counsel, Toronto
Unfortunately, your options for legal recourse are limited because your employer had no obligation to accommodate your reduced availability for work during your co-op placement or to keep your job open for you after you resigned.
Your employer would have had an obligation to accommodate you if you couldn’t work because of a prohibited ground of discrimination, which includes your race, gender and creed. However, your decision to enroll in a co-op program would not qualify for legal protection. Similarly, your employer didn’t have a legal obligation to reinstate you after your co-op ended, like it would have if you had taken a protected leave such as a pregnancy or bereavement leave.
If you feel you aren’t at fault for the loss of your job, you have lost earnings and you have been looking for new employment, you can apply for employment insurance benefits. Service Canada will ask you to explain what caused the separation from your employer. If your explanation is different from your employer’s, Service Canada will investigate and decide how to characterize the separation. You don’t have to do anything about the ROE other than providing your explanation when you apply.
If Service Canada rules in your favour, your employer won’t be punished if it made an honest mistake on your ROE. Your employer could be penalized by Service Canada and become liable to you for nominal damages if it’s found that they deliberately put false information on your ROE – although that seems unlikely in this case.
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