Canadian Employment Law Today

Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2015 Cases and Trends Employer changes mind about changing worker's hours Employer told worker he was getting new shift hours but backtracked when worker protested By RonaLd MinkEn ConsTruCTivE dismissal is a well- known employment law concept. In short, constructive dismissal can occur when an employer fundamentally changes a term or condition of an employee's employment and the employee does not agree, either explicit- ly or implicitly, to its occurrence. While the analysis of whether an employee is entitled to damages resulting from constructive dis- missal changed as a result of the Supreme Court of Canada's 2008 decision in Evans v. Teamsters, Local 31, the basic concept of how it can occur has remained somewhat unaltered. e Ontario Labour Relations Board's recent decision in Oca v. Home De- pot of Canada Inc. is a great reminder of this fundamental employment law concept. Ferdinand Oca was employed as a day shift order picker at a Home Depot store and was one of four employees who picked products for delivery to customers. In Octo- ber 2011, Oca was moved from the day shift to the night shift where he experienced dif- ficulty in having co-workers assist him with the larger and heavier products for delivery, with which the other order pickers assisted him during the day shift. Oca requested as- sistance from his supervisor, but such assis- tance was declined and Oca did not elevate his concern with more senior management. Worker filled out shift availability report In October 2012, Oca completed a report outlining his shift availability by stating that he was available for eight hours a day, 40 hours a week anytime the store was open. e report also indicated Oca would be given shifts that included days, evenings, overnight shifts and weekends. In January 2013, Oca was informed that his hours of work would be changed from 8 p.m. - 4:30 a.m. to 10 p.m. - 5:30 a.m. In response, Oca provided Home Depot with a letter of res- ignation. Following receipt of this letter, Home De- pot met with Oca and indicated it would not change his hours and he could continue to work the 8 p.m. to 4:30 a.m. shift. Oca re- fused the offer and indicated that he would only agree to it if Home Depot would sign a document stating that his hours of work would never change. Home Depot refused to agree to those terms. Accordingly, Oca filed a complaint with the Ontario Ministry of Labour alleging that he was constructively dismissed and there- fore entitled to his statutory termination and severance pay. Upon reviewing the facts, the employ- ment standards officer assigned to the mat- ter decided not to make an order to pay in Oca's favour. Oca appealed this decision to the Ontario Labour Relations Board, who determined that Oca was not constructively dismissed from his employment given that the change "was a modest one" which "came in the context of a situation where (Oca's) hours have been changed before, where he has indicated, in writing, his willingness to work any hours and where the company has a policy, signed by (Oca), indicating em- ployees are expected to work a variety of hours and shifts." Additionally, the Ontario Labour Rela- tions Board indicated that even if the change to Oca's hours constituted constructive dis- missal, the new hours were never imple- mented and in fact recalled by Home Depot in their meeting with Oca. Accordingly, the board found that in these circumstances there can be no constructive dismissal. lessons for employers Prior to making any changes to an employ- ee's employment, employers should ask themselves whether these proposed chang- es will result in the constructive dismissal of an employee's employment. ere is gen- eral disagreement between employers and employees of what may be a fundamental change resulting in constructive dismissal, so each case must be examined closely on its facts. lessons for employees While employers are permitted to make changes to an employee's employment, such changes cannot be fundamental changes without the employee's agreement, whether provided expressly or implicitly. As a result, employees must be cautious in responding to potential changes posed by their employ- ers, as their response may demonstrate that such changes are acceptable and prevent an employee from claiming constructive dis- missal in the future. For more information see: • Oca v. Home Depot of Canada Inc., 2014 CarswellOnt 9906 (Ont. L.R.B.). • Evans v. Teamsters, Local 31, 2008 Car- swellYukon 22 (S.C.C.). AbouT THe AuTHoR Ronald S. Minken Ronald S. Minken is a senior lawyer and mediator at Minken Employment Lawyers, an employment law boutique located in Markham, Ontario. He can be reached at www.MinkenEmploymentLawyers.ca. Ron gratefully acknowledges Sara Kauder and Kyle Burgis for their assistance in preparation of this article The employee's hours had been changed before, he had indicated in writing his willingness to work any hours, and company policy indicated employees were expected to work a variety of shifts.

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