THE “RIGHT” TO PART-TIME EMPLOYMENT
For many workers children and aging parents involves a complicated juggling act between the responsibilities of the workplace and the needs of their families. Often the requirements of family life are addressed through a shortened or reduced work week. The issue of the management right to direct and set hours of work within employment was recently addressed in Dechene v. Khurrum Ashraf Dentistry (2012) ONSC 4594.
Jennifer Dechene, a part-time dental hygienist, sued her employer and was awarded $25,000.00 damages in Small Claims Court after Dr. Khurrum Ashraf Dentistry Professional Corporation (“Khurram Ashraf Dentistry”), dismissed her.
After six (6) years of employment Ms. Dechene was unexpectedly presented with a new employment agreement increasing the hours Dr. Ashraf could require she work to forty-eight (48) in any given week. The offending clause indicated,
The employee shall recognize the absolute right given to the employer under the Employment Standards Act of Ontario to schedule the employee to work up to 48 hours in any given week.
At the time she was presented with the new agreement Ms. Dechene worked part-time thirty-two hours each week. When Ms. Dechene questioned the terms of the proposed contract she was dismissed with five weeks working notice.
On Appeal by the Employer, the decision of Deputy Judge Winny was upheld. The court found the change in hours of work represented “a fundamental change to the existing contract of employment which provided for part-time employment of thirty-two hours” per week.
While the Employment Standards Act, Ontario allows an employer to insist an employee work up to forty-eight hours per week (so long as overtime is paid after forty-four) the Dechene v. Khurrum Ashraf Dentistry illustrates judicial recognition of the competing demands of the family.
Where hours of work are fundamental to the contract of employment an employer cannot unilaterally change that agreement. On the contrary, if the employer desires to increase the hours of work they must obtain the employees’ consent or risk a claim for damages.
While the constructive dismissal never took effect in Ms. Dechene’s case (ie. Khurram Ashraf Dentistry terminated her employment when she sought clarification of the hours requirement) it is a reminder that the management right to increase hours is not unfettered. Employers must be aware of the obligation to accommodate, in appropriate situations, the competing demands of family and work.
