Employee who exercises his right to refuse to work on Sunday is not entitled to make-up shifts during the week

June 2, 2014

In a recent decision, the Ontario Labour Relations Board (the Board) decided that, where an employee exercised his right not to work on Sundays, the employer did not have a positive obligation to provide the employee with additional weekday shifts in order to make up for the resulting reduction in his hours.

The employee, Gregory Farinha (Farinha), had been employed by Highland Farms Inc. (Highland Farms) as a meat cutter since 1986.  Until March 2011, Farinha worked a six-hour shift every other Sunday. When Highland Farms extended its Sunday shifts in March 2011 from six hours in length to eight or nine hours, Farinha exercised his right pursuant to Section 73 of the Employment Standards Act, 2000 (the ESA) to refuse to work on Sundays.  Farinha was not disciplined for refusing to work; however, as a result of his refusal to work Sundays, Farinha’s hours of work were reduced by approximately eight hours per bi-weekly pay period. He was not given additional shifts on other days to make up for the hours he lost by not working on Sundays.

Later in 2011, Farinha developed medical restrictions which prevented him from working more than 40 hours per week and from performing certain of his duties as a meat cutter. Highland Farms offered to transfer him to a different store location where his medical restrictions could be accommodated. Farinha refused this transfer and instead chose to take a lower paying position at his current location which accommodated his medical needs.

Farinha brought a complaint under the ESA, claiming that Highland Farms should have provided him with additional shifts throughout the week to make up for the reduction in hours which resulted from his refusal to work on Sundays. He also claimed that, although   he requested modified duties as a result of his medical restrictions, the proposed transfer to a different store location constituted reprisal in response to his refusal to work on Sundays.

The Employment Standards Officer found that Highland Farms did not contravene the ESA when it allowed Farinha to refuse to work his scheduled Sunday hours, but did not substitute another shift to ensure he maintained the same hours of work. Farinha then brought an application to the Board to review the Employment Standards Officer’s decision.

Board’s Decision

The Board found that neither the ESA nor the employee’s contract precluded Highland Farms from operating on Sundays and assigning Farinha to Sunday shifts. The Board also found that Farinha’s decrease in pay after March 2011 when he exercised his right under the ESA to refuse to work on Sundays was not a punishment for exercising his rights. Rather, it was simply a consequence of his exercise of that right. The Board confirmed that the ESA does not require an employer to substitute a shift or an alternative day in the event that an employee decides that he or she is not going to work as scheduled on Sundays. Lastly, the Board did not agree that proposed transfer was a reprisal related to Farinha’s refusal to work Sundays, as the transfer was a result of his medical restrictions and, in the end, the transfer never occurred.

Our Views

This case clarifies the consequences of an employee exercising his rights under the ESA where that exercise results in a reduction in pay due to reduced hours of work.  In our view, this is a reasonable finding in these circumstances.  A finding in favour of the employee in this case would have resulted in employers in retail businesses being required to schedule employees for make-up shifts, even at times when their services were not necessary.

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