Employer's Ability to Alter Schedule in Ontario

The scheduling of work by employers is not regulated within Ontario's Employment Standards Act (ESA). Consequently, there is no requirement for employers to provide advance notice of shift schedules or last-minute changes to existing schedules. However, it is important for employees to be aware of their rights, which will be further explained in this article.

Background of Scheduling Laws

In 2017, the Fair Workplaces, Better Jobs Act (Bill 148) introduced various provisions concerning an employee's ability to request scheduling changes and refuse work requests. Subsequently, in 2018, the Ontario government enacted the Making Ontario Open for Business Act (Bill 47) to repeal several revisions made by Bill 148. Bill 47 is currently the governing law on this matter.

What Has Changed?

Bill 47 eliminated the following provisions from the Employment Standards Act:

- The right to request scheduling changes after being employed for at least three months.

- Minimum three hours of pay for being on-call.

- The right to refuse work or on-call requests when given less than 96 hours' notice.

- Three hours of pay when a scheduled or on-call shift is canceled within 48 hours before its starting time.

The Three-Hour Rule

According to Ontario's Employment Standards Act, employees are entitled to a minimum of three hours' pay for shifts shorter than three hours, also known as the "three-hour rule." This rule applies to employees who usually work more than three hours per day but, on a particular day, work for fewer hours despite their availability for additional work.

In such cases, the employer must provide the employee with wages for three hours, which should be equal to or higher than the sum of:

- The amount earned by the employee for the time worked.

- Wages equal to the employee's regular rate for the remaining time.

Can an Employer Alter a Posted Schedule?

There are no provisions in the Employment Standards Act that prohibit employers from changing an employee's schedule after it has been posted. Therefore, in general, employers are allowed to make such changes. However, complications may arise if the schedule change constitutes a fundamental alteration to the employment contract.

For instance, if you initially agreed to work a 9 AM to 5 PM shift but are now required to work from 3 PM to 10 PM, which creates difficulties in caring for your children, this change may be considered fundamental because you did not consent to it when you started your employment. In such cases, it may be considered a constructive dismissal, and we recommend reaching out to us for assistance.

Can an Employer Compel Changes in Availability?

The specific terms of your employment contract determine what actions you can take if your employer alters your availability. While the ESA does not prohibit employers from changing schedules, if the employer "forces" you to change your availability in a way that fundamentally alters your employment contract, you may have grounds for a constructive dismissal.

Additionally, if the employer's actions constitute harassment, bullying, or the creation of a toxic work environment because you are unable to change your availability, it is advisable to seek legal counsel.

In certain situations, employees find themselves forced to change their availability in a manner that makes it unmanageable or significantly different from the original terms agreed upon in their employment contract. For example, if you are employed in two jobs and one employer insists on scheduling shifts that prevent you from continuing to work both jobs due to changes in times or location, this can become unmanageable. In such cases, the employee may have to resign, potentially giving rise to a wrongful dismissal claim stemming from constructive dismissal.

Given the unique nature of each individual case, it is of utmost significance to promptly get in touch with our esteemed establishment in order to obtain guidance on your subsequent actions. Our team is readily available to offer assistance and support in any way we can!