By Jeffrey Spiegel
In a recent decision, The Ontario Labour Relations Board (“the Board”) has decided that employers are not obligated to accommodate employees who decline to work on a Sunday, as they are permitted to do under the Employment Standards Act (“the Act”). In the decision, the Board states that “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.” An employer’s decision not to provide an alternate shift when work is declined is not considered a reprisal against the employee.
Under section 73(2) of the Act, employees that work in retail establishments have the right to refuse work on Sundays—and section 74 of the Act prohibits reprisals by employers against employees who exercise this right.
The decision stems from a complaint by Gregory Farinha, against his employer, the Highland Farms retail grocery chain. In 1986, Farinha was hired by Highland Farms as a meat cutter. At this time, retail stores were not permitted to be open on Sundays, so for many years, Farinha worked Monday to Saturday for 44 hours per week. When Highland Farms opened its stores on Sundays after retail shopping was permitted 7 days per week in Ontario, Farinha continued to work the same 44 hours from Monday to Saturday. By March 2011, Farinha had been working 44 hours per week, including one six-hour shift every second Sunday. At this time, Highland Farms decided to increase the length of Farinha’s Sunday shift to eight or nine hours, while maintaining his overall 44 weekly hours. Farinha chose to exercise his right under the Act—advising Highland Farms that he objected to these new shifts and that he did not want to work on Sundays. Highland Farms continued to schedule Farinha for shifts every second Sunday, but Farinha declined to work those shifts. He was not disciplined for refusing work on Sundays, but he was only paid for the shifts he did work. As a result, Farinha earned less than he was earning prior to March 2011. His regular earnings which had been calculated based on 88 hours worked every two weeks, were now calculated based on 79 or 80 hours worked every two weeks.
Farinha argued that continuing to schedule him for regular bi-weekly Sunday shifts after he refused to work Sundays was a reprisal under the Act, however, the Board found that Farinha’s earnings were reduced, not because Highland Farms punished him for declining to work on Sundays, but simply because Farinha bears the cost of exercising his right to refuse work.
Farinha may have had a contractual right to be assigned to a certain number of hours of work per week, but he had no right to any particular shift schedule. When Highland Farms decided to open on Sundays, it continued to enjoy its right to schedule employees whenever it saw fit to appropriately staff its stores during business hours.
The Board pointed out that “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.”
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