Workers claim of fundamental change to employment rejected by adjudicator
A New Brunswick worker who objected to scheduling changes and walked away from his job was not constructively dismissed and should have given it a chance before quitting, an adjudicator has ruled.
Jeremy Scott was an armed guard for Trans Armored Canada (TAC), a company providing armored transportation services and cash for automated teller machines (ATMs) in New Brunswick, Nova Scotia, and Newfoundland. Scott was the most senior out of four employees in New Brunswick, having joined the company in June 2010.
Scott and the other full-time employees were paid every two weeks for 80 hours total, even if they worked less. The weekly work cycle involved three days of deliveries to ATMs around New Brunswick totalling between 30 to 35 hours and, every third week, one employee on call on a rotating basis for emergencies. That same employee was expected to work at a Saturday farmer’s market in Fredericton loading and guarding ATMs. The rotating Saturday shift involved delivering and setting up the ATMs before the market opened at 6 a.m. and collecting the machines at 1 p.m. when it closed. Between those times, the guard on duty normally returned to his hotel room. If the hours worked surpassed 80 hours over the two-week period, the employees received overtime pay.
Scott’s employment agreement included the statement “It is understood and agreed to by the employee that his/her assignment, duties and responsibilities and reporting arrangements may be changed the by the employer in its sole discretion without causing termination of this agreement.” The agreement didn’t specify hours or rate of pay.
Objected to new on-call schedule
The on-call procedure for the farmer’s market was changed after one Saturday the market manager was unable to contact the guard on call. After that, TAC required the guard on duty to stay onsite during the market's operating hours.
Scott and another guard disagreed with the new procedure and both refused to work the farmer’s market as long as it remained in place. TAC had to hire a part-time employee to alternate Saturdays with the third full-time guard, who was also asked to prepare an outline of new employee duties, which called for the reduction of one employee. As the senior employee in New Brunswick, Scott had the first opportunity to accept or reject the new setup.
The third full-time guard emailed Scott to say all employees were expected to take their turn working the farmer’s market, and the employee who did so would be on call that week. As a result, no specific days off could be guaranteed — Scott was used to always having Thursdays off — but he would still be paid for 40 hours per week. Scott felt he wouldn’t be getting paid for working an extra shift at the market every third week if his hours didn’t go over 80 for the two-week pay period, but was losing his assured day off on Thursdays.
Scott told TAC he was going “to the labour board along with other complaints” and “I’ll have my keys and uniform to you ASAP.” He also requested his record of employment and complained that the third guard “had no right to force me to make a decision.”
TAC responded by telling Scott it accepted his resignation and would provide four weeks’ severance pay. Scott dropped his keys and uniforms in the company mailbox, but TAC reported not receiving them.
One month later, Scott emailed TAC’s president to say he hadn't quit, but simply didn’t agree with the new setup. He filed an unjust and constructive dismissal complaint, claiming he was pressured into either agreeing with the new duties or face dismissal.
The adjudicator noted that the email with the changes indicated Scott would still be paid for 40 hours per week and paid overtime for any hours in excess of 80 over two weeks. Scott apparently didn’t believe this, but he should have waited to see if that was the case rather than accusing TAC of fundamentally changing his conditions of employment, said the adjudicator.
The adjudicator also found that, while Scott normally took Thursdays off, this was not part of any official employment agreement. The company was within its rights as the employer to determine the days off for employees as long as they complied with employment standards requirements regarding hours of work and overtime.
The adjudicator determined that TAC’s changes didn’t constitute constructive dismissal and Scott’s reaction to them indicated “his clear intention to resign his position with TAC” — confirmed when he returned his keys and uniform. When he didn’t show up for work after that, it was reasonable to conclude that Scott “did subjectively and objectively resign his employment as a guard with TAC.”
“There indeed was no contractual obligation to consult the employees on this decision, which I find was made for legitimate business reasons,” said the adjudicator in dismissing Scott’s complaint. See Scott and Trans Armored Canada Inc., Re, 2019 CarswellNat 126 (Can. Lab. Code Adj.).