Ontario’s Employment Standard’s Act (ESA) does not include provisions regulating the scheduling of work by employers. Therefore, there is no provision that requires an employer to provide advance notice of shift schedules or of last-minute changes to existing schedules. With this being said, there are important rights for employees to keep in mind that are explained further in this article.
History of the Scheduling Laws
In 2017, Bill 148 (Fair Workplaces, Better Jobs Act) introduced several scheduling provisions regarding an employee’s right to request changes to scheduling and the right to refuse requests to work. In 2018, the Ontario government introduced Bill 47 (Making Ontario Open for Business Act) to repeal numerous revisions in Bill 148. Bill 47 is now the current law on this matter.
Bill 47 repealed (did away with) the following Employment Standard Act provisions:
- The right to request changes to scheduling when employee has been employed for at least 3 months;
- Minimum 3 hours of pay for being on-call;
- The right to refuse requests to work or be on-call where the employee was not scheduled with less than 96 hours’ notice; and
- Three hours of pay where a scheduled or on-call shift is canceled within 48 hours before the shift was to begin.
The Three-Hour Rule
Currently, Ontario’s Employment Standards Act states employees are entitled to a minimum of three hours’ pay for shifts that are under three hours (also known as the “three-hour rule”). The three-hour rule is available for an employee who regularly works more than three hours a day, but on a certain day, works less than three hours despite being available to work more hours.
In this case, the employer is obligated to pay the employees’ wages for three hours, equal or greater to the sum of:
- The amount the employee earned for the time worked; and
- Wages equal to the employee’s regular rate for the remainder of the time
Can an Employer Change your Schedule After its Been Posted?
As there are no provisions in the Employment Standards Act that prohibit employers from changing an employee’s schedule after it is posted, the employer is generally allowed to do so. Complications may arise where the change in schedule is also a fundamental change to the employment contract.
For example, if you signed an employment agreement for a 9AM to 5PM shift and now are required to work 3PM to 10PM, which causes complications in caring for your children, this may be considered fundamental as you did not agree to this at the outset of the employment relationship.
If that is the case, it may trigger a constructive dismissal and you should call us.
Can an Employer Force you to Change your Availability?
Your specific employment contract will dictate what you are able to do if the employer changes your availability. Although there is nothing in the ESA that prohibits an employer from changing your schedule, if an employer is “forcing” you to change your availability and it fundamentally changes your employment contract, you may have grounds for constructive dismissal.
Additionally, if the employer’s “force” presents itself in the way of harassment, bullying, or the creation of a toxic work environment because you cannot change your availability, you should give us a call.
In certain cases, an employee will feel they are forced to change their availability and it becomes unmanageable or very different than the original terms that were agreed to under their employment contract. For example, if you work two jobs and one of your employers is forcing you to take shifts that cannot allow you to continue working for both jobs (either because the times have changed or location), this becomes unmanageable. Specifically, this scenario might force the employee to have to quit. Therefore, the employee may be entitled to a wrongful dismissal claim that arose from constructive dismissal.
As each case is very specific, it is important to contact our firm as soon as possible to seek advice on your next steps. We are here to help!