Canada: Occasional Flexibility Does Not Alter Terms And Conditions Of Employment Contracts

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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