Employer changed hours, job title, compensation during pandemic layoff
An employer terminated the employment of a worker on temporary emergency layoff when it sent her a new contract with different terms of employment before she was recalled, the British Columbia Employment Standards Tribunal has ruled.
Style by West Trading is a wholesale housewares business in Coquitlam, BC. The worker joined the company as a sales assistant/representative in October 2013.
The worker had no written employment contract, but she had a set hourly wage and she worked in the office from 8 a.m. to 3 p.m. Mondays, Tuesdays, and Thursdays, with Wednesdays and Fridays devoted to “out of office” sales. The worker also received a two-per-cent commission on any sales increase to a specific vendor and she attended two trade shows each year as a representative of Style by West, for which she received a flat-fee compensation.
On March 19, 2020, Style by West informed the worker that it was placing her on temporary layoff due to the COVID-19 pandemic’s impact on the business.
While the worker was on layoff, the BC government amended the province’s Employment Standards Regulation, extending the maximum period of temporary layoff due to the pandemic from 13 weeks to 24 weeks, provided that the layoff ended on or before Aug. 30, 2020.
Change in hours, job title
On Aug. 18, the worker received a letter from Style by West’s director stating that her compensation and total hours would remain the same, but her hours were being changed to 10 a.m. to 5 p.m. and she would have to come to the office on Wednesdays instead of Tuesdays.
However, around the same time, Style by West gave the worker a written employment contract that she was to sign and return by Aug. 24. The letter asked the worker to return to work on Aug. 31, but her job title would be changed to “inside sales consultant.” In addition to the new hours of work, other changes included no longer attending trade shows because it was uncertain how many there would be post-pandemic, and no more commissions.
The worker didn’t sign the contract and didn’t return to work. She filed a complaint with the BC Director of Employment Standards claiming that the company terminated her employment but didn’t pay her compensation for length of service and vacation pay.
An employment standards delegate investigated the complaint. During the investigation, Style by West paid the worker her vacation pay entitlement.
Worker not reinstated to same position: investigator
The delegate found that the worker had been laid off due to the COVID-19 emergency, but Style by West didn’t recall the worker to the position she held when she was laid off. As a result, her employment was terminated on Aug. 31. The delegate also found that the new employment contract did not fulfill the company’s obligation to recall or reinstate the employee because the changes indicated in the new contract meant the position was not the same. For example, the removal of the trade show compensation meant that the worker’s total compensation changed, despite the fact that the director indicated that her pay would remain the same, said the delegate. In addition, the change in hours and days worked placed the worker in the position of having to accept substantial changes to her employment as a condition of continued employment, the delegate said.
Since the employment relationship was terminated, Style by West owed the worker seven weeks’ wages as compensation for length of service plus vacation pay, the delegate said.
The company appealed the delegate’s determination, arguing that the terms of employment were not substantially changed. Attending two trade shows annually was not part of the worker’s job description and the total hours worked didn’t change, they just shifted a little later, it said. The company also argued that if there were any substantial changes, it was because of “the realities surrounding the pandemic and outside the employer’s control.”
The tribunal disagreed that attending two trade shows annually was not part of the worker’s job, as Style by West had acknowledged during the delegate’s investigation that her responsibilities included that. The removal of the trade shows and accompanying flat-fee compensation was a unilateral change to the terms of employment, as was changing the worker’s days in the office and hours of work without any consultation with the worker. While trade shows were cancelled because of the pandemic, the worker’s new contract “eliminated the… opportunity to attend at any time in the future,” said the tribunal, noting that each of the changes may not have been substantial but cumulatively, the terms of employment were substantially changed.
No recall within legislated period
The tribunal also found that the delegate’s conclusion was based on the finding that the company didn’t recall the worker within 24 weeks as required in the regulation. This was a fact that could not be ignored, the tribunal said.
The tribunal also agreed with the delegate’s determination that the worker had to sign the new contract to continue her employment, as there was no indication that the worker’s previous, verbal terms of employment would be honoured before Aug. 31, 2020.
The tribunal determined that the delegate made no legal errors and the finding of facts was correct. The company’s appeal was dismissed. See Style by West Trading Inc. (Re), 2023 BCEST 108.
