NINE TO FIVE: SPECIAL TO THE GLOBE AND MAIL, PUBLISHED FEBRUARY 28, 2016
As a salaried municipal employee with a manager title, I had to participate in on-call coverage for emergency management. This required me to be at my workplace within one hour of notification, for the duration of my on-call period, day and night.
The on-call period was typically two out of every four weeks. During these periods, I was extremely restricted in my personal activities, including not being able to leave be out of town. I received no compensation for the time I was required to be on call. I understood that disciplinary action could follow for failure to consistently respond within expectations. In contrast, on-call technical staff were paid for on-call time, with the result that my staff routinely made more income than I did.
The on-call requirement was not in my job description nor in my employment contract.
Did Ontario labour law allow my past employer to schedule managers for on-call work without compensation?
THE FIRST ANSWER
George Cottrelle, Partner at Keel Cottrelle LLP, Toronto
We assume that, as a manager, you were not in a trade union. Your rights to overtime pay, if any, were governed by the Ontario Employment Standards Act, which sets out minimum statutory entitlements for employees, as well as any provisions in your employment contract. We also assume that technical staff were governed by a collective agreement, which contained provisions for on-call pay.
Both hourly and salaried employees are entitled to overtime pay (generally, after 44 hours a week) under the act, unless specifically exempt. Persons whose work is supervisory or managerial are specifically excluded from the act’s overtime provisions. Accordingly, as a manager, you were not entitled to overtime pay.
The act has specific provisions when on-call hours are deemed to be work. performed by an employee. On-call time where the employee is not performing work, but is required to remain at the place of employment, is deemed to be work performed. Where the employee is not at the place of employment, and is simply ready for a call to work, on-call time is not deemed to be work. performed for an employer.
In addition to the act, your employment contract and any policies or practices of your employer applicable to managers would also determine whether you were entitled to additional compensation. Your employer’s position was that on-call coverage was a requirement of your job, without compensation, and we assume there was no policy or practice to the contrary.
We note that on-call coverage was introduced after you began your employment, and as such, potentially constituted a unilateral change to a term of your employment contract. A unilateral change by an employer, without consideration, to a fundamental term of the employment relationship does not have to be accepted by an employee, and may constitute constructive dismissal.
THE SECOND ANSWER
Eleanor James, Communications consultant, James Thinkstitute, Toronto
Two weeks is a long time for such a short leash, especially without compensation. The Employment Standards Act is clear on what is paid work for managers in your situation. Some employers make fundamental contractual changes as a means of constructive dismissal, a way of bullying an employee to quit instead of letting them go. Is it possible that’s what was happening here?
The working relationship sounds poor, too, and what a waste it is when that happens. It’s not uncommon with the mix of unionized and non-unionized workers, and it requires great management to balance both sides. Unfortunately, that’s not always on hand. Often it’s better and easier when people just put their cards on the table rather than trying to weasel out a change and betting the employee won’t fight it.
Employers would benefit from taking into account the consequences of their actions on fairness, morale, lawsuits and the organization’s reputation. A little finesse goes a long way.