Determining what is a fundamental change
Question: If an employee starts work with an employment contract and a set shift schedule, is a shift change considered a significant enough change that requires extra consideration or employee consent?
Answer: In some cases, a shift change can be considered a significant enough change that requires extra consideration or employee consent.
For example, in Comet Transport Ltd., a 2003 decision of the British Columbia Employment Standards Tribunal, the employer informed an eight-year employee that, effective the next day, her usual shift schedule (6 a.m. to 2 p.m.) would be changed to 10 a.m. to 6:30 p.m. The employee — a single parent of two children, aged 10 and 15 — said it would prevent her from adequately attending to family responsibilities.
“I cannot conceive how Comet’s unilateral changes to (her) working schedule could be characterized as anything other than fundamental,” the tribunal said.
Similarly, in Laakso v. Valspar Inc., an employee hired under a contract saying that his hours were 8 a.m. to 4:30 p.m. was informed, after seven years of employment, that he was being reassigned to a rotational shift work position. The court found this was a fundamental change and the employee had been constructively dismissed.
On any assessment of whether a significant change has been made to an employment contract, reference is made to Farber v. Royal Trust Co., where the Supreme Court of Canada said:
“Where an employer decides unilaterally to make substantial changes to the essential terms of an employee’s contract of employment and the employee does not agree to the changes and leaves his or her job, the employee has not resigned, but has been dismissed.
“Since the employer has not formally dismissed the employee, this is referred to as ‘constructive dismissal.’ By unilaterally seeking to make substantial changes to the essential terms of the employment contract, the employer is ceasing to meet its obligations and is therefore terminating the contract.
“The employee can then treat the contract as resiliated for breach and can leave. In such circumstances, the employee is entitled to compensation in lieu of notice and, where appropriate, damages.”
Of course, changing a shift schedule will not require extra consideration or employee consent if the employment contract contemplated the employer’s ability to change shift schedules. Absent language to that effect in the employment contract, the employer could rely upon its policies which may address the point.
However, we recognize that labour standards tribunals and courts are sometimes reluctant to consider company policies as being sufficiently contract-like to justify fundamental changes to employment terms.
Absent something express in the employment contract or helpful in the company policy, an employer will be left arguing the shift change is not so significant as to constitute a fundamental change, or otherwise be forced to provide lots of advance notice and some consideration for the change.
For more information see:
• Comet Transport Ltd. (June 13, 2003), BC EST # RD192/03 (B.C. Emp. Stds. Trib.).
• Laakso v. Valspar Inc., 1990 CarswellOnt 781 (Ont. Div. Ct.).
• Farber v. Royal Trust Co., 1996 CarswellQue 1158 (S.C.C.).
