THE QUESTION
The retail store I work at opened a second location a few towns over. The owner is having trouble staffing the new location, so she keeps changing my shifts to the new store last-minute, sometimes an hour before my shift is supposed to start. It takes me 30 minutes to drive to the new location, and five minutes to drive to the original location. Is she allowed to do this? Can I be compensated for the longer driving time and additional cost of gas?
THE FIRST ANSWER
Marion Blight, barrister and solicitor, Randy Ai Workplace Law, Toronto
As a blanket rule, an employer is not allowed to make unreasonable, unilateral changes to the terms of your employment. This usually involves changes to an employee’s compensation or essential job duties, but it can also involve asking an employee to work in a new location with an unreasonable commute. Unless you agreed to an arrangement like this ahead of time in your employment agreement, that is. Before you do anything else, check and see if there’s a clause you’ve forgotten about which says that you agree to work at both locations or something similar. In which case, you may need to grin and bear it.
If there isn’t a pre-existing clause allowing for it, an extra 50 minutes is on the edge of what most would consider “unreasonable,” especially considering the short notice. You could tell your employer she’s in the wrong and see what solution you can work out between the two of you, including compensation for your driving time or mileage. If it gets that far, you could remind her that the result of a unilateral change to your employment is constructive dismissal, where the employee considers their employment to have been effectively terminated by their employers’ changes to the terms of the relationship.
But be cautious. Employers aren’t obligated to pay for your travel to and from work, it’s just something you can negotiate for. And not everyone would agree that an extra 50-minute round trip constitutes an unreasonable commute (plenty of people have half-hour commutes, after all, it’s just not what you signed up for). Best of luck.
THE SECOND ANSWER
Shane King, lawyer, McLeod Law, Calgary
The requirements for notification of a shift is governed by each province’s requisite legislation. In Alberta, that is the Employment Standards Code.
Generally speaking, the notice of a shift must be reasonable, which is a subjective term, but the code does require at least 24 hours’ written notice of a change from one shift to another. I would argue that includes a change in the location of the shift, and if the employer insisted, I would argue the individual is well within his or her rights to refuse.
There may be emergent circumstances which arise, such as a death or grave illness, in which case the employer’s change of shift may be deemed reasonable by the court, if it went that far, despite being in contravention of the code.
In regard to paying for travel time, that is not something an employer is responsible for, unless it is from the employer’s place of business to a job site, from one job site to another or to pick up materials or perform other tasks on the way to or from work. Paying for fuel is also not mandated by the code.
All of the above can be negotiated between the parties, in which case it will form part of the contract.
The other option is that if an employer unilaterally changes the terms of employment, the employee may argue it is a constructive dismissal. There are a myriad of factors which come into play to determine whether this is a constructive dismissal and must be determined on a case by case basis with legal counsel.
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Andrea Yu