Changing Those Hours? – Watch Out

Frustrated Employee

Constructive dismissal is a well known employment law concept. In short, constructive dismissal can occur when an employer fundamentally changes a term or condition of an employee’s employment and the employee does not agree, either explicitly or implicitly, to its occurrence. While the analysis of whether an employee is entitled to damages resulting from constructive dismissal changed as a result of the Supreme Court of Canada’s 2008 decision in Evans v. Teamsters Local Union No. 31 as demonstrated in our blog entitled “Mitigate Your Losses or Lose Your Case”, the basic concept of how it can occur has remained somewhat unaltered. The Ontario Labour Relations Board’s recent decision in Oca v. Home Depot of Canada Inc. et. al. is a great reminder of this fundamental employment law concept.


The Employee was employed as a day shift order picker and was one of four employees who picked products for delivery to customers. In October of 2011, the Employee was moved from the day shift to the night shift where the Employee experienced difficulty in having co-workers assist him with the larger and heavier products for delivery, which the other order pickers would assist with during the day shift. The Employee requested assistance from his supervisor, but such assistance was declined and the Employee did not elevate his concern with more senior management.

In October of 2012, the Employee completed a report outlining his shift availability by stating that he was available for 8 hours a day, 40 hours a week anytime the store was open. The report also indicated that the Employee will be given shifts that included days, evenings, overnight shifts and weekends. In January of 2013, the Employee was informed that his hours of work would be changed from 8:00 pm to 4:30 am to 10:00 pm to 5:30 am. In response, the Employee provided the Employer with his resignation letter. Following receipt of this letter, the Employer met with the Employee and indicated that they would not change his hours and that he could continue to work the 8:00 pm to 4:30 am shift. The Employee refused the offer and indicated that he would only agree to it if the Employer would sign a document stating that the Employee’s hours of work would never change. The Employer refused to agree to the Employee’s terms.

Accordingly, the Employee filed a complaint with the Ministry of Labour alleging that he was constructively dismissed and therefore entitled to his statutory termination and severance pay.


Upon reviewing the facts, the Employment Standards Officer assigned to the matter decided not to make an Order to Pay in the Employee’s favour. The Employee appealed this decision to the Ontario Labour Relations Board who determined that the Employee was not constructively dismissed from his employment given that the change “was a modest one” which “came in the context of a situation where [the Employee’s] hours have been changed before, where he has indicated, in writing, his willingness to work any hours and where the company has a policy, signed by [the Employee], indicating employees are expected to work a variety of hours and shifts.”

Additionally, the Ontario Labour Relations Board indicated that even if the change to the Employee’s hours constituted constructive dismissal, the new hours were never implemented and in fact recalled by the Employer in their meeting with the Employee. Accordingly, the Ontario Labour Relations Board found that in these circumstances there can be no constructive dismissal.

Lessons for Employers

Prior to making any changes to an employee’s employment, employers should ask themselves whether these proposed changes will result in the constructive dismissal of an employee’s employment. As there is general disagreement between employers and employees of what may be a fundamental change resulting in constructive dismissal, employers should seek out the advice of Employment Law Lawyers prior to implementing any changes that may potentially run the risk of initiating a legal dispute.

Lessons for Employees

While employers are permitted to make changes to an employee’s employment, such changes cannot be fundamental changes without the employee’s agreement, whether provided expressly or implicitly. As a result, employees must be cautious in responding to potential changes posed by their employers, as their response may demonstrate that such changes are acceptable and prevent an employee from claiming constructive dismissal in the future.

Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. Whether you are an employer or an employee, we can help. Contact us to see how.

See also our article published in Canadian Employment Law Today, February 18, 2015, “Employer changes mind about changing worker’s hours”.

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