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Flexibility does not create new terms of employment

Earlier this year, the Ontario Divisional Court upheld a decision which confirmed that an employer’s occasional flexibility with regard to an employee’s hours of work did not displace the employer’s right to enforce the agreed upon hours at a later time.


In Peternal v Custom Granite Marble & Ltd, the employee had been with the employer for over three years when she commenced pregnancy/parental leave in December 2013 prior to the birth of her third child. The employee had no written contract of employment, but the verbal agreement between the parties was that the employee would start work at 8:30 a.m. every day. Despite this, prior to commencing her leave, the employer had granted the employee “significant leniency and cooperation” with respect to allowing her to come in after her scheduled start time. From the employer’s perspective, this was due to the fact that the employee had suffered two miscarriages in 2012, and because she had told her employer that her pregnancy in 2013 was high-risk.

Although the employer was accommodating and flexible, there were still several times where the employee was spoken to about her irregular arrival times, despite no formal disciplinary action being taken. In addition, at trial, the employee acknowledged that when she first accepted the position, she had known that an early morning start time was important to the role.

On January 6, 2015, the employer met with the employee to discuss her return to work. At that time, the employer explained to the employee that there had been changes to the company’s operations while she had been on leave, and that the employee would now be required to consistently be at work by the 8:30 a.m. start time. The employee advised the employer that while she had full-day daycare for her infant, she had only arranged for after school daycare for her two older children, based on her assumption that she would resume her previous work hours of 10:00 a.m. – 5:00 p.m. She told her employer she would see what she could do to find before school daycare for her children.

Ultimately, the employee did not return to work. She asserted that she was unable to do so because she could not secure before school daycare for her two children. The employee brought a claim alleging that the employer had:

  • Failed to reinstate her to the position she held prior to her leave, contrary to the Employment Standards Act, 2000 (the “ESA”);
  • Constructively dismissed her by unilaterally changing her hours of work; and
  • Failed to accommodate her childcare needs contrary to the Human Rights Code (the “Code”).

At trial

The trial judge dismissed the employee’s claim in its entirety.

Justice Sheard found that the position offered to the employee at the end of her leave was substantively and qualitatively the same as the one held prior to her leave. As a result, there was no breach of the ESA.

In regards to the constructive dismissal argument, Justice Sheard was not convinced that there had ever been an agreement between the parties that altered the employee’s original hours of work or guaranteed her flexible work hours, noting: “Despite that Custom had previously granted the plaintiff latitude in the time at which she arrived for work prior to her maternity leave, the evidence leads me to conclude that it always remained a term of her employment that the plaintiff be able to attend work close to 8:30 a.m., if asked to do so by Card, or if required to attend a meeting.”

As a result, it was clear that the employer was not “unilaterally imposing a change that substantially altered the essential terms of the plaintiff’s contract of employment” but simply “asking the plaintiff to do what she had done throughout her employment”, which was to be at work when the employer needed her there. Justice Sheard found that, in reality, it was the employee who was attempting to change the terms of her employment by stating that she could never be available to work before 10:00 a.m.

Finally, the trial judge concluded that there was no failure to accommodate pursuant to the Code. In this regard, the employee herself had frustrated any efforts that might have been made to accommodate her needs by failing to disclose the specifics of her childcare requirements. In this regard, Justice Sheard specifically acknowledged that had the employee provided the employer with information regarding her daycare situation, and the employer had refused to co-operate in accommodating her, the employee may have been able to establish that the work hours constituted “adverse treatment on the basis of her family status”.

On appeal

The Divisional Court upheld Justice Sheard’s decision in its entirety, and dismissed the appeal with costs fixed at $33,000.00.

Key takeaways

In this case, one of the key elements of the employer’s success was the fact that the evidence demonstrated that the employer had consistently spoken with the employee about her irregular attendance and made it clear that she was required to attend at work at her regular start time of 8:30 whenever requested. In other words, it was not reasonable for the employee to assume that a permanent change to her hours had been agreed to.

Generally speaking, employers should be careful about being lenient with regard to the terms and conditions of an employee’s employment in order to avoid any potential argument that, by its conduct, the employer has agreed to alter those terms and conditions. If flexibility is required, it is important that an employer make it very clear that the terms and conditions of employment are not being altered on a permanent basis.

Finally, this case is a helpful reminder to employees about the duty to participate and cooperate in the accommodation process. It is very likely that had the employee been open and forthcoming with respect to her childcare needs, that the employer’s duty to accommodate would have been triggered.

By Brittany Taylor

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Rudner Law, Employment / HR Law & Mediation

Employment Lawyers and Mediators at Rudner Law
Rudner Law is a firm specializing in Canadian Employment Law. They provide clients with strategic advice regarding all aspects of the employment relationship, negotiate and advocate on their behalf and represent them before courts, mediators and tribunals. Blog posts are written by Stuart Rudner, the principal and founder of Rudner Law, Brittany Taylor, a Senior Associate at Rudner Law, Nadia Zaman, an Associate at Rudner Law and Anique Dublin, a Law Clerk at Rudner Law. Read more
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