Can an Employee Transform an Employer’s Leniency About Start Times Into a Contractual Term?

Sometimes, employers allow employees to arrive at work later than their official start time. Employers can take comfort in the fact that this occasional permissiveness does not mean that employees can demand a later start time.

In Peternel v. Custom Granite & Marble Ltd., 2019 ONSC 5064, the Ontario Divisional Court held that an employer’s flexibility regarding start times does not modify the employment agreement.

The Decision

The plaintiff was employed by the defendant as a scheduler for three and a half years before going on maternity leave. Pursuant to an oral employment agreement, her hours were 8:30 a.m. to 4:30 p.m. The employee had two young children who required early morning care. Prior to the employee’s maternity leave for her third child, the employer was lenient about the employee’s start time to allow her to attend to these child care needs. However, the employee was expected to, and did, attend early morning meetings when asked to do so. The employer occasionally spoke to the employee about her tardiness, but she was never disciplined.  

While on maternity leave, the employer told the employee that when she returned to work, she would be required to arrive no later than 8:30 a.m. due to changing business circumstances. The employee claimed that she was unable to do so because she could not secure childcare. Ultimately, the employee did not return to work.

The employee brought a claim alleging that:

  • The employer breached its obligation under the Employment Standards Act, 2000 ato reinstate her to the position she held prior to her maternity leave;
  • The employer unilaterally changed the essential terms of her employment agreement by requiring an 8:30 a.m. start time, by which she was constructively dismissed; and
  • The employer discriminated against her on the basis of family status in breach of the Human Rights Code.

The trial judge found that none of these claims were made out and dismissed the action. Despite the fact that the employer had previously granted the employee latitude in her start time, the trial judge concluded that it always remained a term of her employment that she be able to attend work at 8:30 a.m. if asked to do so or if required to attend a meeting. The employer was not unilaterally imposing a change that substantially altered the essential terms of her employment agreement. Rather, the employer was asking her to do what she had done throughout her employment: to be at work when the employer needed her to be there. As such, the employer did not constructively dismiss the employee, nor did it breach its requirement to reinstate her to her former position.

The employee also failed to show that the 8:30 a.m. start time was discriminatory. The trial judge found that the employee did not provide the employer with important information regarding her childcare needs. By failing to disclose her needs, the employee frustrated any efforts the employer could have made to accommodate her.

The Divisional Court dismissed the employee’s appeal. The Court accepted the trial judge’s finding that the 8:30 a.m. start time was a fundamental term of her employment agreement and that it was the employee who was unilaterally attempting to change the agreement by stating that she would not be able to start work at any time before 10 a.m.

Takeaways for Employers

  • Neither employers nor employees may impose a unilateral change to a fundamental term of an employment agreement.
  • While employers may be flexible regarding start times, employees cannot transform this leniency into a contractual obligation.
  • Accommodation is not solely the employer’s obligation. It is a joint process that requires employees to provide accurate information about their needs.

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Lawson Lundell's Labour and Employment Law Blog provides updates on the most recent legal developments impacting the Canadian workplace and offers practical tips for employers. We cover a range of topics, including labour relations, employment law, collective bargaining, human rights, employment standards, employment equity, workers' compensation, business immigration, privacy, occupational health and safety and pensions and employee benefits. 

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