Employee suggested it wasn’t always necessary to work overtime at the office but supervisor disagreed
An Ontario employee who resisted the accepted standard of long hours during the busy year-end accounting season was asserting her rights under employment standards rather than trying to get out of work, the Ontario Labour Relations Board has ruled.
Marie Shi began working as a senior tax analyst for Holcim Canada, a cement aggregate manufacturer based in Mississauga, Ont., in November 2008. Upon her hiring, she was subject to a six-month probationary period during which Holcim could terminate her employment without notice or cause.
Shi’s employment began during the busy year-end period for the company’s finance and accounting department, as much of the year’s tax planning and calculating took place. During this period, employees were expected to work long hours, often late at night and on weekends, until the work was finished in mid-January.
After the 2008 year-end activity, Shi discussed with her manager the possibility of improving work planning during the year-end so late nights could be avoided. There were no performance issues raised with Shi during the rest of the year, though her manager discussed some issues with Holcim’s director of HR after her probationary period was completed, including the fact that Shi sometimes questioned her instructions and assignments.
After the discussion with Shi’s manager, the director of HR decided to fire Shi with reasonable notice. However, it was agreed to delay her termination until after the 2009 year-end work was done in January 2010.
Employee and manager didn’t see eye-to-eye on necessity of long hours
On Dec. 1, 2009, an email was sent out to staff saying everyone would be expected to work at the office on the weekends and evenings and Shi was told she would get lieu time for any overtime worked. Shi responded saying she would try to work overtime when needed by couldn’t “guarantee” it until she saw how things were going. She also said she might need to work at home to do overtime.
Shi’s manager reiterated the need to work overtime in the office and extra hours would be needed. Shi remained skeptical about the extent of extra work needed to get through the year-end. In early January 2010, the two continued to disagree and the manager made it clear to Shi in “a profanity-laced rant” that Shi had to be prepared to work long hours in the office and that was final.
Shi complied and worked 12 consecutive days, including 48 hours the first week and 55 in the second, ending Jan. 15. Around the same time, her manager and the director of HR resumed their discussion regarding her termination. The manager called Shi a “nine to five” person” and it was agreed to proceed with the termination. She was terminated at the end of the day on Jan. 15, 2010. She was told she was not a good fit for the company and Holcim was downsizing and given two weeks’ salary and benefits plus a $2400 severance payment in exchange for signing a release.
Shi filed a complaint, arguing she was entitled to overtime pay for the extra hours she worked during the year-end period, over her regular weekly total of 37.5 and her firing was a reprisal.
The board found that although there were discussions on Shi’s performance over the course of 2009, Shi was never informed of any dissatisfaction by her employer. The director of HR also was not familiar with her and the decision to fire her was based entirely on what the manager said. It was clear there was some friction between Shi and her manager and they didn’t share the same perspective on what was needed to get the year-end work finished, said the board.
The board also found Shi was not exempt from overtime provisions in Ontario’s employment standards legislation and the offer of lieu time was not sufficient, nor was there an agreement in place for her to work extra hours without overtime pay, so Shi was entitled to overtime pay for the extra hours she worked. The board referred the parties to a labour relations officer to work out Shi’s overtime entitlement before resuming a hearing for the reprisal issue.
“In resisting the work schedule for the first two weeks of January 2010 I find that Ms. Shi was effectively asking the company to comply with the (Employment Standards Act, 2000) or attempting to exercise a right under the act, whether or not she was consciously aware of the precise nature of her statutory rights,” said the board.
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