THE QUESTION
I work at a restaurant and at least twice a month, the manager will change the schedule on us. He’ll cancel shifts, or move them around so I have to change my personal plans or appointments. Is this legal? Are employers obligated to give minimum notice for changing shifts?
THE FIRST ANSWER
Carly Poissant, lawyer, HHBG Lawyers (Employment Justice), Vancouver
Generally, B.C. employers may change or cancel shifts for non-unionized employees at any time without pay if notice was given before the employee reported to work. However, the following exceptions may apply.
Employers must provide at least eight consecutive hours off work between shifts and at least 32 consecutive hours off work every week. If you are required to work during this 32-hour period, your employer must pay overtime.
If you and your employer have entered into an averaging agreement or a variance, please consult your local employment standards office to ensure these changes are permitted.
Your situation could amount to a “constructive dismissal” if your employer has unilaterally changed a fundamental condition of your work. For example, this may occur if your employer has:
- Made significant reductions to your pay (for example, at least 30 per cent)
- Previously agreed to schedule shifts within your availability, but now refuses to do so
- Changed your status (for example, from full-time to on-call)
If applicable, you may be able to leave your position and claim compensation as if you had been formally terminated.
You may also have a human rights claim for family status discrimination if these schedule changes interfere with your child/dependent care responsibilities.
I recommend you speak with your local employment standards office or a lawyer in your area if any of the above exceptions apply to you.
If you are unionized, please consult your collective agreement as it may restrict your employer’s ability to change or cancel shifts.
THE SECOND ANSWER
Alexis Radojcic, associate lawyer, Ryan Edmonds Workplace Counsel, Toronto
In Ontario, whether you can insist on a certain schedule depends on the terms of your employment.
If you have a written contract, check whether your employer (a) promised you a set schedule and/or a certain amount of notice before changing your schedule, or (b) specified that your hours will vary depending on the restaurant’s needs. If (a), you can insist on compliance with the terms of your contract. If (b), there is little recourse because you knew when you accepted the job that your hours would vary.
If you don’t have a written contract, the terms of your employment are implied by the parties’ conduct and practices. If your employer has been changing your schedule like this for quite some time, it has likely become an implied term of your contract that your employer can change your schedule through your repeated agreement to those scheduling changes.
Unfortunately, while Ontario’s employment legislation used to require an employer to provide a minimum amount of notice before changing or cancelling an employee’s shift, these laws were repealed in 2018.
There is a potential caveat. If your appointments relate to a characteristic protected by the Ontario Human Rights Code (for example, family status or disability), you can alert your employer to the adverse impact the late scheduling changes are having on you and request accommodation. However, you can’t request accommodation for mere personal inconvenience. Run-of-the-mill personal plans or appointments such as a haircut or dinner with a friend do not attract any legal protections.
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