The Facts

The employer was a grocery store operator. The employee was a long service employee whose shift schedule included a six hour Sunday shift every 2 weeks. The employer changed the work schedule such that the Sunday shift increased to 8-9 hours but the employee’s weekly hours of 44 remained the same. The employee then, as was his right under the ESA, refused to work any hours on Sunday. As his Sunday shift was not rescheduled, the result was that he earned less money because he worked less overall hours over the course of a payroll period.

The Issue

The employee argued that when he refused to work on the Sunday the employer should have scheduled more hours for him during the Monday – Saturday period and that failure to do so was a reprisal under the ESA.

The Result

The employee’s case was dismissed.

In reviewing whether the employee suffered a reprisal under the ESA, the OLRB considered the following:

• The employer never insisted that the employee work on Sunday.
• The employer did not discipline the employee for not working on Sunday.
• The employer did not punish the employee by offering him fewer hours of work than other employees.
• The change in shift schedule to work additional Sunday hours occurred before the employee gave notice of his refusal to work on Sunday.
• Although the employer wanted to transfer the employee to another store, that occured a year after he chose to not work on Sunday and was in an effort to better accommodate the employee’s medical restrictions.

Perhaps most importantly, the OLRB found that although the employee’s earnings were reduced, that was not because the employer punished him for refusing to work on Sunday. Instead, it was the employee’s own decision to decline a shift made available to him. In other words, the employee had to live with his decision to not work on Sunday and could not expect the employer to make up the lost hours or pay from Monday – Saturday. The OLRB concluded that there was nothing in the ESA that obligated an employer to do this.

Take-Aways for Retail and Other Employers

This case reminds employers in the retail sector that employees do have a general right to refuse work on Sunday under s. 73 of the ESA. Retail employers should review their hours of work and time off policies/practices to ensure ESA compliance.

This case also emphasizes that an employee’s exercise of a statutory right under the ESA does not necessarily mean that an employer has to take steps to ensure an employee’s preferred outcome, which, in this case, was no loss of pay. In short, the decision to not work and the resulting loss of pay is sometimes the employee’s to bear. As the OLRB commented in this case:

[The employee’s] earnings were reduced, not because the company punished him for exercising a right under the Act, contrary to section 74, but simply because the cost of exercising that right is one that he bears. Employees may decline to work a Sunday shift, however, they will not be paid for not working, and the Act does not oblige an employer to substitute another shift. Similarly, employees are entitled to various forms of leave from work under the Act. Where they are absent from work because they have exercised the right to take such leave, the Act neither requires the employer to pay them while on leave nor to schedule a make-up shift in order that they will not be out of pocket as a consequence of taking the leave

Finally, this case serves as a reminder that when an employee exercises a statutory right, an employer should proceed with caution and ensure that the employee is not penalized or disadvantaged as a result of his/her decision. In this case, the employer had a very good story to tell. The employer’s consistent treatment of the employee in comparison to all other employees made it very difficult for the employee to claim that he was singled out for reprisal. He was treated the same as all other employees in terms of the shifts offered. The OLRB could not find that the employee suffered any adverse consequence due to the employer’s action. The adverse consequence (i.e. the loss of pay) was the employee’s own doing.

Note: This a reprint of an article by Daniel Pugen.