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The Divisional Court of Ontario's Superior Court of Justice
recently dismissed an appeal in Peternel v. Custom Granite
Marble & Ltd.,1 with costs, finding that an
employer's occasional leniency with regard to an employee's
terms and conditions of employment does not render those
requirements unenforceable.
Background
The employee worked from May 2010 until December 2013 when she
took maternity leave. Although the employee's official start
time was 8:30 a.m., prior to taking maternity leave she was
afforded flexibility and sometimes permitted to arrive at work
later than 8:30 a.m., although she did attend early morning
meetings when necessary.
At a meeting prior to her return to work, the employee was
advised of a restructuring that occurred during her leave, and that
as a result, upon her return she would be required to strictly
adhere to her 8:30 a.m. start time. The employee did not return to
work, stating that she was unable to secure before-school daycare
for her two older children and that the employer would not
accommodate her. She then sued alleging:
The employer failed to reinstate her
to her pre-leave position as required by employment standards
legislation;
She had been constructively dismissed
because the hours of employment offered were a unilateral change to
the fundamental terms of her employment and she was entitled to
damages for wrongful dismissal equal to six months' notice;
and
When she told the employer that the
proposed hours conflicted with her childcare arrangements and
family obligations, the employer had an obligation to accommodate
her. In failing to do so, the employer discriminated on the basis
of her family status. She was therefore entitled to special damages
equal to six months' notice and punitive damages of
$20,000.
Decision of the Lower Court
The court concluded that when the employer required the employee
to be at work consistently by 8:30 a.m., it did not change her
previous terms of employment, and dismissed the employee's
action because:
The employer is not obliged to
reinstate an employee to the exact pre-leave schedule when there
has been a bona fide change during the leave. The employer
met its obligation under employment standards legislation to
restore the plaintiff to her pre-leave position or, alternatively,
to a position that was substantially and qualitatively the
same;
The employee was not constructively
or wrongfully dismissed. Although the employer had previously
granted the employee latitude in her arrival time prior to her
leave, it was always a term of her employment that she attend work
at 8:30 a.m., if asked. When the employer insisted the employee
maintain the original hours of 8:30 a.m. to 4:30 p.m., the employer
was not unilaterally imposing a change that substantially altered
essential terms of the employment contract; rather, it was asking
the employee to do what she had done throughout her employment: to
be at work when the employer needed her to be there. When the
employee made it clear that, because of her childcare
responsibilities, she would never be available before 10:00 a.m.,
it was the employee who was attempting to impose a unilateral
change to her employment contract by changing her daily start time;
and
The employer did not discriminate
based on "family status." The employee failed to disclose
her childcare needs, thereby frustrating any efforts that might
have been made to accommodate those needs. The employer was not in
breach of human rights legislation and was not liable for damages.
(See a comprehensive analysis of family status discrimination in
Canada here.)
Decision on Appeal
The Divisional Court upheld all of the trial court's
determinations and dismissed the appeal with costs.
Bottom Line for Employers
Peternel v. Custom Granite & Marble Ltd. tells
employers that if they are sometimes lenient with an employee with
regard to terms and conditions of employment, they will not
jeopardize the enforceability of the employment contract.
Generally, however, employers should adhere to the terms and
conditions of employment agreements. If an employer agrees to
occasional flexibility, the employer should make it clear that the
terms of the employment contract are not being altered permanently,
and that the employer will continue to have the right to enforce
them.
This article was originally published by The Lawyer's
Daily (www.thelawyersdaily.ca), part of LexisNexis
Canada Inc.
1 20018 ONSC 3508, affirmed 2019 ONSC 5064.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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