Is an increase in working hours constructive dismissal?

Can an employer unilaterally increase the standard hours of work from 44 to 48 per week or would this be a constructive dismissal?

Question: Can an employer unilaterally increase the standard hours of work from 44 to 48 per week or would this be a constructive dismissal?

Answer: In Farber v. Royal Trust Co. the Supreme Court of Canada held a constructive dismissal occurs when an employer makes a unilateral and fundamental change to a term or condition of an employment contract without providing reasonable notice to the employee. This type of change amounts to a repudiation of the contract of employment by the employer, and enables the employee to depart and seek wrongful dismissal damages.

Each constructive dismissal case must be decided on its own facts to determine whether fundamental terms of the employment contract have been altered. The onus is on the employee to show that such a change has occurred.

Whether a four hour per week increase in work constitutes a fundamental change would depend upon factors such as:

•the express or implied terms of the employment contract;

•any applicable provisions in the employer’s policies or manuals;

•the impact of the change on the affected employees;

•whether the employer has increased or altered hours of work in the past;

•whether the alteration is indefinite or temporary in nature; and

•the manner in which the employees will be paid for the extra hours.

Employers must, of course, be careful to ensure they comply with the hours of work and overtime provisions in the applicable legislation when hours of work are increased.

For more information see:

Farber v. Royal Trust Co., 1996 CarswellQue 1158, 27 C.C.E.L. (2d) 163, [1997] 1 S.C.R. 846 (S.C.C.)

Colin G.M. Gibson is a partner with Harris & Company in Vancouver. He can be reached at [email protected] or (604) 891-2212.

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