Employees who are on call but don't necessarily work
Question: Can employers require or request unpaid standby duty where employees are only paid if they are called in? Can standby duty be counted towards the overtime threshold?
Answer: The answer to this question will largely depend on the applicable legislation and the specific nature of the standby duty. Generally, an employee will not be entitled to paid standby duty, unless the standby duty would be considered “work.” Again, this will depend on the case.
In Ontario, work is considered to be performed when the employee is actually working. Thus, an employee who is not at the workplace, but is on call is not considered to be working unless the on-call employee is actually called into work. Where the employee is called into work and the time that they are performing work pushes them past the defined hours for the work week — 44 hours in Ontario, for example — then that employee will be entitled to overtime. However, the time while the employee is at home on standby would not be counted.
In Manitoba, employees are only paid for hours that they have worked and being “on-call” is not considered time worked. However, once the employee is called into work, there are specific on-call wage requirements that will apply. For example, if an employer has not told the employee how long he is being called into work for, the on-call employee must be paid for at least three hours when he reports to work. The legislation provides an option to avoid having to pay the three-hour minimum for employers who schedule their on-call times. However, these schedules need to be accurate. Thus, if an employee ends up regularly working more than the time scheduled for, that employer will be required to pay the employee three hours’ wages.
In Saskatchewan, employees who are “at the disposal” of the employer are entitled to be paid wages. Thus, the question is whether while on standby, the employee would be considered at the employer’s disposal. The answer will depend on the specific case. If the employee spends his on-call time at the workplace and remains under the employer’s control throughout that time, it is likely that the employee will be at the employer’s disposal. For example, it has been held that an employee on standby was at the employer’s disposal during shifts where she slept at a care home, but remained on call to deal with residents’ needs.
In Alberta, an employer is not required to pay an employee who is on standby waiting to be called to work unless he is spending that time at the workplace. However, there are situations where the employee would be considered working, such as when the employee is required to wear a uniform during standby duty, or is required to monitor radio calls.
In many cases the employment agreement is governed by an employment contract or a collective agreement. As such, it is important to consider whether the employment agreement contemplates rights above and beyond those available under statute. This question was recently considered by the Supreme Court of Canada in the decision, Association des juristes de justice c. Canada (Procureur général).
In that case, the question was whether a unionized employer could unilaterally introduce a policy requiring that employees provide unpaid standby duty. There, lawyers working for the Department of Justice were informed that they would no longer be paid for time spent on standby duty. This reduced the amount of lawyers who volunteered to work standby duty. To deal with this, the employer issued a directive making after-hour standby shifts mandatory. The matter was grieved with the arbitrator concluding that the policy was not a reasonable or fair exercise of management’s rights. The Supreme Court of Canada agreed with the arbitrator. Although the collective agreement was silent on the question, the employer had unilaterally imposed a policy that took away a long-standing practice of paying its employees for standby duty. As such, the employer’s enforcement of the policy constituted a violation of the employer’s duty to act reasonably, fairly, and in good faith under the collective agreement.
Even if an employer is not governed by a collective agreement, there may nonetheless be an obligation to pay for standby duty. As in the above case, where there is a longstanding practice of providing standby pay and the employer unilaterally introduces a policy that does away with that past practice, then an employee may have grounds to assert that the employer similarly breached its duty of good faith under the employment contract.
For more information see:
• Association des juristes de justice c. Canada (Procureur général), 2017 CarswellNat 5990 (S.C.C.).
