New mom awarded 15 months’ pay

Bookkeeper was constructively dismissed when employer changed hours, but ruling doesn’t mean new parents can dictate hours

An Ontario court has awarded a bookkeeper who was constructively dismissed 15 months’ pay in lieu of notice after her employer unilaterally changed her hours of work after she had a baby.

In essence, the employer wanted Annette Corey to start at 8 a.m. but she didn’t want to come in until 9 a.m. because it would disrupt her baby’s sleep schedule.

But Justice John Cavarzan of the Ontario Superior Court of Justice was careful to say that the fact she had a child was incidental to her successful claim of constructive dismissal and the decision should not be viewed as one setting a precedent for parents of young children to start dictating their hours of work.

“It was a simple case of unilateral alteration by the employer of the essential terms of an oral contract of employment,” said Justice Cavarzan. “The fact that those terms were generated by the employee’s wish to work limited hours because she wanted to spend more time at home with her child is incidental … it is wishful thinking to suggest that employees can now invoke child-care responsibilities as a reason for not accommodating reasonable changes prompted by the exigencies of the employer’s business, if hours of work were not negotiated for that reason.”

Corey started working for Dell Chemists in 1984 when she was only 15. She worked her way up and was the manager of a store in Dunnville, Ont., in the late 1990s. She generally worked from 8 a.m. to 4 p.m. Her first child was born on Aug. 23, 2001. She planned to return to her management position at the Dunnville store at the end of her maternity leave in August 2002.

But she eventually realized that caring for her young child would not permit her to return to a full-time position. She met with a vice-president and told him of her desire to return as a part-time bookkeeper. She was offered such a position and worked three days a week from 9 a.m. to noon. In October 2002 she was asked to take on additional bookkeeping work at a Dell Chemists location in Hamilton. She accepted the additional work.

A number of other changes followed, and she soon began working five days a week at various locations for about 20 hours per week. But she soon discovered that her schedule left her too little time with her child. She approached her supervisor and requested a four-day week. The supervisor agreed to the change.

In late 2003, things changed dramatically at work for Corey. She was told the bookkeeper position would be changing effective Dec. 1, 2003, to five days per week and the hours of work would be from 8 a.m. to 2 p.m. on three days and from 8 a.m. to 1 p.m. on the remaining two days for a total of 28 hours per week. (Officially, according to the employee handbook, this made her a full-time employee.)

Corey told her supervisor that she would not work five days per week and the proposed starting time of 8 a.m. would be incompatible with her baby’s sleep schedule.

The employer made another offer, stating the job would be from 8 a.m. to 2 p.m. Monday to Friday. She again refused. The employer sent her a letter on Dec. 8 stating that her last day of work would be Dec. 31, 2003.

The court said the changes imposed unilaterally by the employer were “substantial” as they would convert Corey from a part-time to a full-time employee.

“The addition of the fifth work day and the earlier starting time together with the increase in weekly hours to 30 hours constituted substantial changes to the essential terms of the contract of employment,” said Justice Cavarzan. “(She) was subjected to constructive dismissal.”

The court said Dell Chemists was not guilty of bad faith by attempting to change the hours and conditions of her employment. But constructive dismissal doesn’t require the employer to be guilty of bad faith.

In Farber v. Royal Trust Co., the Supreme Court of Canada said that “for the employment contract to be resiliated, it is not necessary for the employer to have intended to force the employee to leave his or her employment or to have been acting in bad faith when making substantial changes to the contract’s essential terms.”

The court awarded Corey $14,355 in pay in lieu of reasonable notice and $11,000 in costs.

For more information see:

Corey v. Dell Chemists (1975) Ltd., 2006 CarswellOnt 3513 (Ont. S.C.J.)

Farber v. Royal Trust Co., 1996 CarswellQue 1158, 27 C.C.E.L. (2d) 163 (S.C.C.)

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