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THE QUESTION
I gave up a higher-paying job in a rural area and relocated to the city for a new position because I wanted more stability. I was told it would be a hybrid Monday-to-Friday schedule with two or three days a week in the office. It’s been a month and I haven’t worked from home yet and have only had a few days in the office. The rest of the time has been on job sites 50 kilometres from my home.
Now I’ve been told I’ll be doing night shifts for weeks at a time. Night shifts were never mentioned during the interview process or in my job offer. I never would have accepted the job if I had known it entailed this. I feel I was lied to during the hiring process. It’s a three-month probation period, so if I refuse to work the night shifts, will I be let go with no severance or employment insurance? What are my options? I’m now regretting leaving my previous job.
THE FIRST ANSWER
Alia Besharat, associate, Ogletree Deakins International LLP, Toronto
The first thing you should do is calmly and professionally speak to your employer to attempt to remedy your concerns in light of your pre-hire conversations. Before the meeting, review the job offer and try to recall what your conversations were during the hiring process. Let your employer know that you are interested in having the same understanding and expectations of the role moving forward. You may have an employer who is open to such a discussion and willing to correct the situation. On the other hand, you may find yourself in a situation where you have to look for another job.
While you can refuse to work the night shifts, you do so at a risk of being terminated for insubordination. That said, an employer does have an obligation to terminate a probationary employee in ‘good faith’. This is why speaking to your employer regarding the expectations of both parties is the most prudent step. You are entitled to let them know that the job duties were not discussed during the interview process nor were they in the employment agreement. If you feel that you were terminated because of your inquiries, you may have grounds to bring a wrongful dismissal claim against your employer.
While you can’t go back in time, a best practice to implement in the future is to have as many of the details you discussed with your new employer fleshed out and written into the employment agreement before starting a new job.
Regarding EI, depending on whether you have enough hours, you may be entitled to it if you are terminated during your probationary period. Another option if the job is still not filled is to go to your former employer and ask if they are willing to bring you back.
THE SECOND ANSWER
Sara Forte, lawyer, Forte Workplace Law, Surrey, B.C.
I am sorry to hear that you are in this situation. The first step is to check your employment contract. You noted there is a three-month probation period so it sounds like there may be some kind of written terms of employment. If you don’t have a contract, check what is in your written job offer, or check your emails or written correspondence with the employer about the job offer. Is the promise of a hybrid work location, Monday-Friday, set out in writing? If so, you may be able to use that to have a discussion with your employer to advocate for the schedule you were promised, or alternatively make a claim for constructive dismissal. Constructive dismissal applies when your employer has fundamentally unilaterally changed the terms of your employment. Sometimes contracts or offers include wording that the employer can set/change the work location or schedule at their discretion. If this is in the contract wording, it will be much more difficult to make a constructive dismissal claim.
You should also check the contract or offer to see if it addresses your entitlement to severance pay. While probationary periods of three months without severance can be legal, they are sometimes unenforceable. These contract terms can be unenforceable for reasons including if they were not part of the original job offer to you, if they are unclear as written or if the termination entitlements fall below the applicable employment standards legislation minimums.
Your EI entitlement would not be determined by your contract or the employer, but by Service Canada. If you quit, you are generally not entitled to EI benefits, but they may take into account if you are effectively forced to quit because of job requirements that have been changed unilaterally.
Given all of this, the best approach is to attempt to advocate for yourself in discussions with your employer to get the schedule you were promised, or alternatively look for a new job.
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