Canadian Employment Law Today

March 6, 2019

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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PM40065782 Emplo y ment Law Today Canad ad a ian Worker quits after schedule change Workers claim of fundamental change to employment rejected by adjudicator BY JEFFREY R. SMITH A NEW BRUNSWICK worker who ob- jected to scheduling changes and walked away from his job was not constructively dismissed and should have given it a chance before quitting, an adjudicator has ruled. Jeremy Scott was an armed guard for Trans Armored Canada (TAC), a company provid- ing armored transportation services and cash for automated teller machines (ATMs) in New Brunswick, Nova Scotia, and New- foundland. Scott was the most senior out of four employees in New Brunswick, having joined the company in June 2010. Scott and the other full-time employees were paid every two weeks for 80 hours total, even if they worked less. e weekly work cycle involved three days of deliveries to ATMs around New Brunswick totalling be- tween 30 to 35 hours and, every third week, one employee on call on a rotating basis for emergencies. at same employee was ex- pected to work at a Saturday farmer's market in Fredericton loading and guarding ATMs. e rotating Saturday shift involved deliv- ering and setting up the ATMs before the market opened at 6 a.m. and collecting the machines at 1 p.m. when it closed. Between those times, the guard on duty normally re- turned to his hotel room. If the hours worked surpassed 80 hours over the two-week pe- riod, the employees received overtime pay. Scott's employment agreement included the statement "It is understood and agreed to by the employee that his/her assignment, duties and responsibilities and reporting ar- rangements may be changed the by the em- ployer in its sole discretion without causing Lights out for worker who refused night shift move Worker claimed he couldn't work night shift for medical reasons, but information he provided didn't support his argument BY JEFFREY R. SMITH AN ONTARIO arbitrator has upheld the dismissal of a worker who refused to accept a move to the night shift. Talat Khan was a millwright for Nestle Canada at the company's production facil- ity in Toronto who was hired in 2012. He normally worked the afternoon shift, but on March 15, 2018, the maintenance man- ager informed him that he was being moved to the night shift eff ective March 25 so the company could balance out the millwrights on each shift. Khan had a vacation scheduled around that time, so his fi rst scheduled night shift wouldn't happen until April 10. Khan wasn't happy about the change be- cause he felt it violated the collective agree- ment and thought he was entitled to a layoff instead of a shift change. According to the March 6, 2019 Worker overestimates changes to position pg. 3 Confl ict with co-worker, manager's refusal to make worker's suggestions company policy not constructive dismissal: Court Bill 47 brings new constructive dismissal risks for Ontario employers pg. 4 Rolling back changes may be diffi cult for some employers DOCTOR'S NOTE on page 6 » NO CHANGE on page 7 » CREDIT: TERO VESALAINEN/SHUTTERSTOCK with Leah Schatz Ask the Expert pg. 2 Employee's failure to disclose prescription drug use

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