Changing shift schedule and days off

How much can be changed before risking constructive dismissal?

Brian Johnston

Question:  If an employee’s shift times and days off are changed without the employee’s consent but the employee’s pay remains the same, is there a risk of constructive dismissal?

Answer: There is constructive dismissal risk.

A constructive dismissal is a fundamental change to terms and conditions of employment. Clearly employment terms are being changed in this instance; the question is whether that change is fundamental.

The test for establishing constructive dismissal is through the eyes of the affected employee acting reasonably. Therefore, it depends. For some employees, changing shift times and days off may not be a problem; some may welcome it. However, other employees, due to their own personal circumstances, may find this problematic.

The applicable law was stated by the Supreme Court of Canada in Potter v. New Brunswick (Legal Aid Services Commission). There are two instances where constructive dismissal can arise: first, where a single unilateral act by the employer creates a substantial change in the employee’s employment contract; or second, where a series of acts by the employer shows an intention to no longer be bound by the employment contract.

The first instance requires that the employee establishes: 1) that the employer made a unilateral change which breached her employment contract; and 2) that the breach substantially altered an essential term of the contract. The court would consider whether an express or implied term has been breached and whether the breach was serious enough to amount to constructive dismissal. A breach may include changes to the employee’s compensation, work assignments, and/or place of work that are both unilateral and substantial.

However, if an express or implied term of the employment contract gave the employer the authority to make the change, or if the employee consents or complies with it, the change is not a “unilateral act” and will therefore not constitute a breach (or amount to constructive dismissal).

Furthermore, there is no requirement that the employer actually intends to no longer be bound by the employment contract; the perspective is objective and that of a reasonable person in the same circumstances as the employee. However, evidence of the employer’s intent and good faith can be relevant to the court in determining whether there was a breach.

The second instance does not require a particular act that breaches the employment agreement, such as a change in compensation or assignments. Rather, constructive dismissal can result from a course of conduct that cumulatively demonstrates that the employer no longer intends to be bound by the employment agreement.

Similar to above, the standard is that of a reasonable person in the same circumstances as the employee and not whether the employer actually intended to no longer be bound by the contract.

Therefore, the answer to this question unfortunately is that “it depends….”

For more information see:

Potter v. New Brunswick (Legal Aid Services Commission), 2015 SCC 10 (S.C.C.).

Brian Johnston, Q.C., is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or [email protected]

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