THE QUESTION
A hospital has informed a group of non-unionized managers that we will be on call from 4 p.m. to 8 a.m. during a seven-day work period. It is expected to occur two to three times a year. This will be addition to working during the day. The compensation for on-call duty is one day off in lieu. Is the employer able to do this? How can we, as a group, approach this situation, in order to refuse or negotiate better compensation? Is there a separation recourse, such as arguing constructive dismissal?
THE FIRST ANSWER
Daniel A. Lublin
Partner at Whitten & Lublin Employment & Labour Lawyers
The first problem with your employer's new rule is that it could be illegal. In addition to potentially offending regulatory laws addressing hours of work and overtime, provincial employment standards codes across Canada require employers to pay employees for being on-call and do not permit trading on-call pay for time off in lieu.
For instance, in Ontario, there is a requirement to pay three hours of regular wages to an employee who is on-call and required to work, even if he or she does not work the full three hours. Similarly, in Alberta, an employer is required to pay an employee three hours of minimum wage for each call-out or when the employee is required to wear a uniform and/or monitor radio calls, even if not called out. In British Columbia, an employee must be paid for being on-call, unless he or she remains at home while on-call.
The second problem with the proposed new rule is that, even if reworked to comply with all aspects of the relevant legislation, it could amount to a breach of contract, known as a constructive dismissal. Employers have the right to make tweaks or changes to employment terms and conditions so long as they are not fundamental alterations. Significant workplace changes, such as reduced compensation, more hours of work, a different work location and different duties, could be viewed as a constructive dismissal, depending on the impact of the changes on the employee. If this is the case, employees may have the right to reject the changes and sue for a severance package while they look for other work.
If all of your colleagues are opposed to the new proposal, you should stick together to put pressure on your employer to reconsider, or to try to negotiate better terms. If that does not result in anything positive, there is a legal claim to consider.
THE SECOND ANSWER
Kyle Couch
President & CEO, Spectrum Organizational Development Inc.
For many office workers, when the proverbial five o'clock whistle blows, the race is on to dash to the parking lot or train to head home. However, in industries such as health care, manufacturing, and customer service, some shifts are just getting started. In far too many cases, these employees conduct their work with very little management support. Many organizations are therefore altering managers' schedules to ensure adequate coverage for these off-hour shifts.
As a manager, your success is 100 per cent dependent upon the success of your team. Therefore, this move will give you a better ability to ensure they have what they need to be successful. While the idea of being on-call may seem unfair, you should consider the fact that your employees will have a greater level of support from you and your colleagues – and their productivity and effectiveness can increase dramatically – by having your support when on-site employees and supervision cannot overcome a challenge.
In hindsight, your hospital could have involved their managers in the process of coming to this conclusion and implementing this new process. While I believe the concept is progressive, simply informing you of the decision was a mistake.
The other thing to consider is that you will simply be "on-call," and you may find that over the course of the two or three weeks that you are responsible for support that you may not be disturbed at all. The more proactive you and your fellow managers are during the day to train your off-shift supervisors, and to identify potential issues, the less likely you are to be contacted.
Daniel Lublin