Interested in more careers-related content? Check out our new weekly Work Life newsletter. Sent every Monday afternoon.
THE QUESTION
I work at a restaurant. The owner frequently cancels our shifts last minute. Sometimes it’s the night before the shift starts, but he also does it on the day of, a few hours or sometimes one hour before the shift starts. Is this legal? Am I entitled to any pay for the cancelled shifts? The cancelled shifts are eight to 10 hours long.
THE FIRST ANSWER
Lai-King Hum, founder and senior lawyer, Hum Law Firm, Toronto
While your situation is unfortunate, the answer will depend on a number of factors including what province or territory the restaurant is located in and whether you are unionized and have a collective agreement. In general, in non-unionized workplaces, if you have already reported to work for a shift before it is cancelled, then you are entitled to pay for minimum hours of work. If the shift is cancelled before you report to work, then your recourse is limited. For instance, in Ontario, there is no requirement under the Employment Standards Act, 2000 requiring employers to give advance notice of shift changes.
Here are a few things to consider when it comes to shift changes:
Minimum hour rule: Each jurisdiction has its own rules regarding minimum hours of work. If you report in for your shift and the shift is cancelled or shortened, you are entitled to minimum hours pay. For example, in B.C., if you are scheduled for eight hours or less, you are entitled to two hours’ pay; if you are scheduled for more than eight hours, you must be paid for a minimum of four hours. In Ontario, if you begin your shift and your employer has you work less than three hours, you may then be entitled to a minimum of three hours of pay. This rule applies if you regularly work shifts longer than three hours and are available to work but work less than three hours.
Frequent cancellations and constructive dismissal: Since these cancellations appear to be happening frequently, you might have grounds to claim constructive dismissal.
Prohibited reasons for cancellation: If these shifts are being cancelled for discriminatory reasons (for example, based on race, gender, age or other prohibited grounds under human rights legislation), you may have a claim against the employer on these grounds.
If there are repeated cancellations of shifts, or the cancellations are rooted in discriminatory practices, that rises to legal remedies. If you believe this may apply to your situation, consulting an employment lawyer can help clarify your rights and potential claims.
THE SECOND ANSWER
Jahaan Premji, associate, Carbert Waite, Calgary
Every province has Employment Standards rules that set minimum requirements for how employers schedule hours of work. In most jurisdictions, there is a requirement that shifts not be cancelled or changed within a certain number of hours of the start date. In Alberta for example, an employer is required to give employees 24 hours written notice before changing or cancelling a shift. If the employer fails to do so, a minimum number of hours must be paid.
In Alberta, if an employer cancels your shift outside of the notice period (less than 24 hours before), or after your shift has already started, they must pay you for at least three hours of work, even if you were sent home early. An employee dealing with recurring shift cancellations may also have an argument that the employer has breached the employment contract (depending on its terms), or in some more exceptional circumstances, for constructive dismissal. You should review your employment contract and the Employment Standards in your provincial jurisdiction to determine if your employer is breaching its employment standards obligations or breaching the terms of your employment contract.
Have a question for our experts? Send an email to [email protected] with ‘Nine to Five’ in the subject line. Emails without the correct subject line may not be answered.
