Ontario’s Employment Standard’s Act (ESA) does not include provisions regulating the scheduling of work by employers. Therefore, there is no provision that requires an employer to provide advance notice of shift schedules or of last-minute changes to existing schedules. Despite this, employees have rights that employers must respect. In short, employers are not permitted the change employees’ schedule such that it fundamentally changes the terms of the employment contract. Doing so may amount to constructive dismissal.
The Three-Hour Rule
Currently, s.21.2(1) of Ontario’s Employment Standards Act states employees are entitled to a minimum of three hours’ pay for shifts that are under three hours (also known as the “three-hour rule”). The three-hour rule applies if an employee who regularly works more than three hours a day is required to present for work, but works less than three hours despite being available to work for longer.
In other words, in order for the three hour rule to apply, the employee must regularly work more than three hours per day; the employee must be directed to present for work by their employer; and the employee must be available to work longer than three hours, even though they worked for less than three hours (i.e., if the employee presents for work but leaves early due to illness or pre-arranged time-off, the three hour rule will not apply).
In such a case, the employer is obligated to pay the employee’s wages for three hours, equal to the greater of the following:
- The sum of:
(i) The amount the employee earned for the time worked; and
(ii) Wages equal to the employee’s regular rate for the remainder of the time.
- Wages equal to the employee’s regular rate for three hours of work.
Under paragraph 1(i), an employee is entitled to payment for the time they worked. This means wages at the employee’s regular rate, or wages earned at a different rate (i.e., overtime or premium pay). Under paragraph 1(ii), the employee is also entitled to be paid at their regular rate for the remaining time. This sum is then compared to the employee’s wages for three hours of work at their regular rate. The calculation that results in the greater number is the amount of wages owed to the employee.
Can an Employer Change your Schedule After its Been Posted?
As there are no provisions in the Employment Standards Act that prohibit employers from changing an employee’s schedule after it is posted, the employer is generally allowed to do so. Complications may arise where the change in schedule is also a fundamental change to the employment contract. Fundamental changes include those that result in an employee working more or less than originally indicated in the employment contract, or significant changes to their shift start/end times.
For example, if you signed an employment agreement for a 9AM to 5PM shift and now are required to work 3PM to 10PM, which causes complications in caring for your children, this may be considered fundamental as you did not agree to this at the outset of the employment relationship.
If that is the case, it may trigger a constructive dismissal and you should call us.
Can an Employer Force you to Change your Availability?
Your specific employment contract will dictate what you are able to do if the employer changes your availability. Although there is nothing in the ESA that prohibits an employer from changing your schedule, if an employer is “forcing” you to change your availability and it fundamentally changes your employment contract, you may have grounds for constructive dismissal.
Additionally, if your employer’s “force” takes the form of harassment, bullying, or the creation of a toxic work environment because you cannot change your availability, you should give us a call.
In some cases, an employee may feel forced to change their availability and their employment becomes very different from the original terms to which they agreed under their employment contract and therefore unmanageable. For example, if you work two jobs and one of your employers is forcing you to take shifts that prohibit you from continuing to work at both jobs (either because the times have changed or location), this would become unmanageable. Specifically, this scenario might force the employee to quit. Therefore, the employee may be entitled to a wrongful dismissal claim that arose from constructive dismissal.
Each case requires a contextual analysis of the circumstances that led to dismissal. Therefore, it is important to contact our firm as soon as possible to seek advice on your next steps. We are here to help!
