THE QUESTION
Last month I started a seasonal job as a sales associate at a retail shop. My contract is for 20 to 40 hours of work a week, but my manager told me to expect close to 40 hours a week. I’ve been working for a month now and my shifts have been more like 20 to 25 hours. I didn’t get a second job because of the manager’s promise of 40 hours, and now I’m suffering financially. What can I do? Does my manager have any obligation to offer more hours?
THE FIRST ANSWER
Charles Osuji and Claire Lee, Osuji & Smith Lawyers, Calgary
We are sorry for what happened but, unfortunately, it may be difficult to require your employer to give you more hours under these circumstances.
First, you might want to check whether there is an “entire agreement” clause in your employment contract. It is a contractual provision that attempts to prevent the parties from relying on any statements or representations that are not in the written agreement, including what was communicated to you prior to signing the contract. In other words, if your contract contains an entire agreement clause, then you won’t be able to hold your employer accountable for any promises unless they are specified in your written agreement.
Also, if there is a “modification of agreement” clause stating that any and all changes must be in writing, then it would be difficult to oblige your employer to put you on longer shifts even in the event where the employer, after signing the contract, reassured you that you could expect close to 40 hours.
In short, if there is an entire agreement clause and/or a modification of agreement clause in your employment contract, your employer has not breached the employment agreement and you are given hours pursuant to the contractual terms (i.e., “20 to 40 hours of work a week”).
Lastly, even if your employment contract does not contain these clauses, the losses you have suffered, which would be the income that you would have earned from working those additional hours, can easily be mitigated by looking for a second job now.
Given the above, your employer would likely be found to have complied with the terms of your employment agreement and would not be under any obligation to offer you more hours. However, it doesn’t mean that you can’t have a chat and see whether the employer is willing to give you longer shifts. We hope that you will be able to amicably work this out.
THE SECOND ANSWER
June Mills, associate, Pink Larkin, Halifax
To determine whether a verbal statement is a term of the employment contract, step one is to check the written contract. Does the contract have an “entire agreement” clause? Entire agreement clauses are meant to bring certainty to the interpretation of a contract and to limit the parties’ agreement to the written contract. If the contract includes this type of clause, the manager’s verbal statement is likely not binding.
Even if the contract does not contain an entire agreement clause, the next issue is whether the verbal statement can be considered a binding term of the contract. Given the vague wording of your manager’s statement, it is unlikely that a court would conclude that your manager’s statement was a guarantee of 40 hours.
In this case, while you may not have legal recourse, practically speaking, I recommend you speak with your manager to request more hours. Communication may resolve your issue.
Moving forward, it is good practice to ensure the written employment contract reflects the reality of the employment relationship. If an employer indicates that terms may be different in practice, that’s a cue to ask more questions and, if possible, negotiate.
Have a question for our experts? Send an e-mail to NineToFive@globeandmail.com with ‘Nine to Five’ in the subject line. Emails without the correct subject line may not be answered.
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