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metronews.ca Wednesday, May 23, 2012
Workplace Law
It feels like night and day: An employer cannot drastically change your hours without your consent.
Should you merely adjust to a work adjustment? workplace law
Daniel Lublin dan@torontoemploymentlawyer.com Twitter: @danlublin
Employees faced with changes to their jobs used to just deal with it and move on. Seldom did they protest and if they did, it often did not matter. Now, armed with the knowledge that they can pursue damages for “constructive dismissal”, employees faced with changes to their jobs will call their lawyers instead.
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without their consent. Some employers ignore this rule and impose substantial changes anyway. When this occurs, the employees may be entitled to leave their jobs and sue for damages as if they had been fired. What about more work for the same pay? In a recent case, an Ontario judge found that an employee was wrongfully dismissed when her job doubled but without any increase in pay.
What types of workplace changes can be rejected?
Reduction in compensation Some pay cuts can be rejected by employees. However, the problem is that it is not clear how large the pay cut must be. There are some cases where a five per cent reduction in overall pay could be refused but there are also cases where a 15 per cent decline was permitted.
Changed responsibilities Most employees are hired for a defined role and that role cannot later be changed
Changed hours of work If a specific shift or certain hours have become customary, an employer cannot
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make any significant change without that employee’s consent. In a recent Ontario case, the court found that Ken Blair was constructively dismissed because, after nine years of working only rotating shifts, his company suddenly forced him to work nights. Harassment or discrimination Harassed employees can leave work and then sue for damages. However, harassment is often in the eye of the beholder. The employee must objectively show that the workplace was intolerable and there was no other reasonable option but to immediately leave. Probation Many employers operate under the misconception that a probation period can be imposed at their discretion, as a form of discipline. They are mistaken. Unless agreed to or used as last resort, it generally cannot be done. Daniel A. Lublin is a workplace lawyer with Whitten & Lublin.