Monday, 14 July 2014

Refusal to Work Sunday Shift Protected by ESA. But is the Employer Obligated to Provide a "Make-up" Shift?

When an employee in the retail sector exercises his right to refuse work on a Sunday, is the employer obligated to keep him whole by providing additional shifts at other times in the week?  In the recent decision in Highland Farms Inc., the Ontario Labour Relations Board has determined that the answer is "no". 

The claimant was a meat cutter at one of Highland Farms' stores.  When the company extended his regular 6-hour Sunday shift to 8 or 9 hours, the employee exercised his rights under section 73 of the Employment Standards Act, 2000 (the "ESA") to decline the Sunday shift.  As a result, the claimant was not disciplined, but his hours of work diminished by approximately 8 hours every two weeks.  A few months later, the claimant was placed on new medical restrictions that prevented him from doing certain aspects of his job.  The company offered him an accommodated position at another store, but he rejected that option and instead took a lower-paying position in the same store that met his restrictions.

The claimant argued that the reduction in his bi-weekly hours (from 88 to approximately 80) and the proposed transfer to another store constituted a reprisal for exercising rights under the Act.  The Board reviewed the relevant provisions of the Act and the evidence, and concluded that the reduction in his hours was not retaliatory; it was "simply because the cost the cost of exercising that right is one that he bears.  Employees may decline to work a Sunday shift, however, they will not be paid for not working and the Act does not oblige an employer to substitute another shift". The Board also accepted the employer's explanation for the proposed transfer.  In the result, the application was dismissed.

The case is a good reminder that not all of the consequences of an employee's exercise of rights under the ESA need to be borne by the employer.  Where an employee declines a shift, there is no positive obligation to provide a "make-up" shift at some other time.  Likewise, if an employee refuses consent to averaging of work hours (for overtime purposes), it is not unlawful for the employer to change the employee's schedule to avoid the necessity of paying overtime.  In some cases, employees just have to pay the "costs" of their decisions.

Do you have a question about the Employment Standards Act, 2000?  Need assistance with a claim?  Feel free to contact Lance Ceaser for assistance.

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