In a recent decision, the Ontario
Labour Relations Board (the Board) decided that,
where an employee exercised his right not to work on Sundays, the
employer did not have a positive obligation to provide the employee
with additional weekday shifts in order to make up for the
resulting reduction in his hours.
The employee, Gregory Farinha (Farinha), had
been employed by Highland Farms Inc. (Highland
Farms) as a meat cutter since 1986. Until March 2011,
Farinha worked a six-hour shift every other Sunday. When Highland
Farms extended its Sunday shifts in March 2011 from six hours in
length to eight or nine hours, Farinha exercised his right pursuant
to Section 73 of the Employment Standards Act,
2000 (the ESA) to refuse to
work on Sundays. Farinha was not disciplined for refusing to work;
however, as a result of his refusal to work Sundays, Farinha's
hours of work were reduced by approximately eight hours per
bi-weekly pay period. He was not given additional shifts on other
days to make up for the hours he lost by not working on
Later in 2011, Farinha developed medical restrictions which
prevented him from working more than 40 hours per week and from
performing certain of his duties as a meat cutter. Highland Farms
offered to transfer him to a different store location where his
medical restrictions could be accommodated. Farinha refused this
transfer and instead chose to take a lower paying position at his
current location which accommodated his medical needs.
Farinha brought a complaint under the ESA, claiming that
Highland Farms should have provided him with additional shifts
throughout the week to make up for the reduction in hours which
resulted from his refusal to work on Sundays. He also claimed that,
although he requested modified duties as a result of his medical
restrictions, the proposed transfer to a different store location
constituted reprisal in response to his refusal to work on
The Employment Standards Officer found that Highland Farms did
not contravene the ESA when it allowed Farinha to refuse to work
his scheduled Sunday hours, but did not substitute another shift to
ensure he maintained the same hours of work. Farinha then brought
an application to the Board to review the Employment Standards
The Board found that neither the ESA nor the employee's
contract precluded Highland Farms from operating on Sundays and
assigning Farinha to Sunday shifts. The Board also found that
Farinha's decrease in pay after March 2011 when he exercised
his right under the ESA to refuse to work on Sundays was not a
punishment for exercising his rights. Rather, it was simply a
consequence of his exercise of that right. The Board confirmed that
the ESA does not require an employer to substitute a shift or an
alternative day in the event that an employee decides that he or
she is not going to work as scheduled on Sundays. Lastly, the Board
did not agree that proposed transfer was a reprisal related to
Farinha's refusal to work Sundays, as the transfer was a result
of his medical restrictions and, in the end, the transfer never
This case clarifies the consequences of an employee exercising
his rights under the ESA where that exercise results in a reduction
in pay due to reduced hours of work. In our view, this is a
reasonable finding in these circumstances. A finding in favour of
the employee in this case would have resulted in employers in
retail businesses being required to schedule employees for make-up
shifts, even at times when their services were not necessary.
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