The Question
I work for a grocery store as a department manager and I need some clarity on whether my boss can tell me that it’s my responsibility to come in when someone calls in sick. I checked my contract and nowhere does it state that I’m responsible to be on call to come in when another employee calls in sick.
She also tells me that I have to work on stat holidays because I am the manager. In Ontario, I thought it was up to the employee to volunteer whether they’re willing to work a stat holiday or not. My boss says I’m salaried, but I still get paid an hourly wage, so I’m not sure how she’s able to say I’m salaried.
The First Answer
Daniel A. Lublin, partner, Whitten & Lublin, Toronto
When it comes to your hours of work, employers often get to call most of the shots. While your contract may be silent about the matter, the ordinary rule is that your employer can call you into work even if you were not scheduled on that day or at that time.
However, in workplace law, there are always exceptions and exemptions. While you can be required to work, your employer cannot violate any of your statutory rights. For example, you are legally entitled to a certain amount of time off between shifts, you must not be forced to work more than a set number of hours in each day and you are guaranteed at least 24 consecutive hours off from work each week. Also, if you have child-care or elder-care responsibilities, or other accommodation-based needs, you can be exempted.
While your employer’s powers may seem unfair, it cannot act in bad faith. While replacing a sick employee is legitimate, an abusive exercise of discretion could justify refusing the work order.
Conversely, you have the right to choose whether you perform work on a public holiday or not. You can agree to work that day and receive premium pay or your regular pay plus a substitute holiday. However, unless you fall within a statutory exemption, such as working at a hospital, a nursing home or at a restaurant, you cannot be forced to work on a public holiday. Whether you are salaried or not is irrelevant.
The Second Answer
Jason Edwards, lawyer, Pink Larkin, Halifax
Your situation is a perfect example of how important minimum employment standards are in our day-to-day working lives.
The former Ontario government’s Bill 148 would have mandated your employer to pay you for at least three hours any time you were required to be available for work. You would also have been entitled to refuse work that was not scheduled at least 96 hours in advance. Those protections were erased by Premier Doug Ford’s Making Ontario Open for Business Act. Now, there is no legislated prohibition against, or cost associated with, keeping an employee “on call.”
Concerning holidays, the Employment Standards Act clearly provides that retail employees are entitled to refuse work on holidays. Your employer is not allowed to fire you, or otherwise take action against you, for refusing to work on a holiday. In practice, however, your employer might find ways to make your life more difficult if you start refusing to work on holidays.
Over all, this doesn’t sound like a very nice place to work. I would bet that your employer will continue to do these things as long as they can get away with it. Your best chance at making a change is probably to talk to your co-workers about forming a union. If that doesn’t work out, you might want to think about finding a new job.
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