The question
I signed a contract to work on 10 specific days in a two-week period, with payments of $250 per day. However, I was not called in to work on three out of 10 of the specified days. I wasn’t able to book shifts at other places because I assumed I would be working. The company is now saying they don’t have to pay me for those three days because I didn’t work. Am I owed money for all of the days they contracted me to work?
The first answer
Lai-King Hum, founder and senior lawyer, Hum Law, Toronto
It should come as no surprise that the answer is it depends. Whether you are owed money depends on the actual wording of the contract you signed.
If the contract provided that you would specifically work 10 days in a two-week period, but you were only scheduled for seven shifts, then the terms of your contract have likely been breached. You would likely be entitled to seek compensation for losing three days of expected wages.
However, and this is where “it depends” comes in, there may be additional wording in your contract that deals with this specific situation. The additional wording might limit your entitlement to be compensated for days you were not called in. For example:
Does your contract actually say you will be on call for 10 days in a two-week period? If so, you might still be entitled to some compensation for the three days you were on-call but not called in. For instance, in Ontario, you would be entitled to wages for at least three hours’ pay if you were on call that day and not called in.
Does your contract simply provide that the 10 days in a two-week period are anticipated but not guaranteed? If the days are only tentative, then your employer might have no obligation to compensate you for not being called in.
While you are likely owed money for your loss of three days of work, it is important for you to look at the actual wording of your contract and consult with an expert when necessary.
THE SECOND ANSWER
Jonquille Pak, lawyer and founder, JPAK Employment Lawyers, Toronto
In Ontario, provincial employment standards legislation does not require the company to pay you for hours you do not work. The only exception is if you showed up to work and learned that the shift was cancelled. In these circumstances, at a minimum, you could be entitled to a pro-rated payment of three hours of work, even if you did not work at all. This is referred to as the three-hour rule, which generally applies if the daily schedule regularly exceeds three hours per day over the span of the contract.
Outside of these circumstances, there is no legislated requirement that the company pay you if you are given notice of shift changes or cancellations before you report to work. Employment standards legislation applies only to employees, so if you signed an independent contractor agreement for services, it wouldn’t apply.
Regardless of your status as either an employee or contractor, under the common law, you may have a viable claim for full earnings loss for the three days of missed work. If the contract is silent on the issue of shift cancellations, it may be reasonably inferred that the company has no discretion or flexibility under the contract to cancel or vary work days. In this respect, the contract is very specific in terms of the start date, end date and the exact dates you are to work during the two-week period. The last-minute cancellation of one-third of the shifts is arguably a breach of the core terms of contract, entitling you to damages representing what you should have earned had the company fulfilled the terms of the contract. In other words, you should be paid for the three days of work that was lost.
Alternatively, you should be entitled to the pay you could have earned elsewhere had the company given you adequate notice of cancellation. In your circumstances, I would suggest you push back and seek full payment from the company for its breach of contract. If the company does not voluntarily comply, as a last resort, you have the option to pursue a breach of contract claim in small claims court. The difficult reality for casual or temporary workers in this situation is that the cost of pursuing a civil remedy in court may offset or exceed the loss of pay.
Have a question for our experts? Send an email to NineToFive@globeandmail.com with ‘Nine to Five’ in the subject line. Emails without the correct subject line may not be answered.
Andrea Yu