In Dechene v. Dr. Khurrum Ashraf Dentistry, an employee who had been employed by a verbal agreement was provided with a proposed new written employment agreement. The employee currently worked 32 hours per week in a part-time position. The new written employment agreement provided that the employer had the right to require the employee to work up to 48 hours in any given week. The language of the agreement provided, “the employee shall recognize the absolute right given to the employe[r] under the Employment Standards Act of Ontario to schedule the employee to work up to 48 hours in any given week”
The employee argued that this amounted to a constructive dismissal. The court agreed that this change in hours was significant and in the appropriate circumstances would constitute a constructive dismissal. Ultimately the court held it was not a constructive dismissal. The court found, on the basis of findings by the trial judge, that the parties were still negotiating. As such, the employer had not yet unilaterally imposed the new terms at the time it terminated her employment.
The decision raises interesting considerations regarding the bounds of an employer’s authority to impose conditions on employees that are within the limits of the Employment Standards Act, 2000 (the “ESA”). Under the ESA, an employer cannot unilaterally require an employee to work more than 48 hours in a week. However, this leads to a common misconception by employers. Just because the ESA permits employers to schedule an employee for up to 48 hours of work per week, does not give employers an absolute right to do so. Although each case is fact specific, where an employer significantly increases an employee’s hours of work this can constitute a constructive dismissal. In this case, the increase in hours was significant. A constructive dismissal might not have been triggered if the employer had raised her hours marginally, for instance, from 32 hours per week to 35 hours per week. However, there is no magic number. Each case will be decided on its particular facts.