Ontario Labour Relations Board
1640-00-ES Telespectrum Canada, Applicant v. Shahireh Rehman and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 30014167
BEFORE: Marilyn Nairn, Vice‑Chair.
APPEARANCES: Frances Fitzgerald appeared on behalf of the applicant; Shahireh Rehman appeared on her own behalf; Stephen Mason appeared on behalf of the Ministry of Labour.
DECISION OF THE BOARD; December 27, 2000
1This is an application for review brought pursuant to section 68 of the Employment Standards Act (the “ESA”). The applicant (the “employer”) seeks to overturn Order to Pay #56182 issued on July 19, 2000 by the Employment Standards Officer (the “ESO”). The total amount of the Order to Pay was properly paid into trust at the time the appeal was made.
2The Order to Pay was made on behalf of the claimant, Shahireh Rehman. It was the position of the claimant that she had been constructively dismissed by the employer on March 3, 2000. The ESO concluded that the claimant’s employment had been terminated without notice. He further found that an offer of alternate employment was not an offer of reasonable alternate work within the meaning of Regulation 327 of the ESA. The ESO ordered the payment of termination pay and severance pay pursuant to sections 57 and 58 of the ESA respectively.
3There was no meeting of the ESO with the employer prior to the ESO issuing the Order to Pay. The employer takes the position that the claimant quit her employment. It further takes the position that it offered the claimant reasonable alternate work which she refused.
4I heard the evidence of the then Manager of Operations, Eva Marlow, the claimant, and James Duncan, the Human Resources Manager. Ultimately there was little real dispute as to the facts, although the characterization of those facts was in issue. The employer is a call centre. It provides contracted telephone services to large corporations, both inbound campaigns and outbound. Examples of inbound campaigns would be the provision of telephone services whereby staff answer calls from customers of the corporation concerning service, special promotional offers, or new product inquiries. Examples of an outbound campaign would include cold calls to existing or potential customers of the corporation to offer new services or products. Upon contracting for a new campaign, customer service representatives (“CSRs”) or telephone sales representative (“TSOs”) would be provided training with respect to the offering or product, the contracting entity, and the design and goals of the campaign. In this decision the term CSR will be used to generically describe those employees who make the calls.
5At the relevant time, the employer operated on a 24 hour, 7 day a week basis. There were a variety of shifts, including 8:30 a.m to 4:30 p.m., 9:00a.m. to 5:00 p.m., noon to 8:00 p.m., 1:00 p.m. to 9:00 p.m, 4:30 to midnight, and midnight to 8:00 a.m. Most of the work was performed between 8:30 a.m and midnight.
6At the time of these events the claimant was employed as a supervisor on the night shift. Following the merger of S&P Data with Telespectrum in or about early 2000, there were organizational changes. One result was the downsizing of the CQS (quality control) staff in or about February 2000. Employees affected were given notice of the downsizing and offered either a severance package or the opportunity to be employed in the lower-rated CSR position.
7At about the same time, another change was a decision to change the manner in which certain contracts were priced. The U.S. head office determined that the terms of the company’s Canadian agreements for inbound contracts performed on the night shift were not sufficiently profitable. It directed that the terms of those contracts be changed. As a result it appears that all of the employer’s contracts for work to be performed on the night shift were not renewed. Customers were not content with the change in pricing and took their business elsewhere. Whatever the merit of the decision by the head office, there was no suggestion that it was made in bad faith or for any reason other than business concerns. The result however was that there was no work to be performed on the night shift and thus the shift was eliminated. There was however work available on the other shifts and employees working the night shift were moved to comparable positions on those other shifts.
8The claimant commenced employment in August 1993 as a CSR. She was promoted to supervisor a little over a year later and remained in that position until her employment ended. Although she started on the day shift, she worked the night shift following her return to work after the birth of her child. The claimant testified that the employer had considered that she return to a day shift, but accommodated her request to work the night shift because of her childcare concerns. She agreed that she had turned down promotional opportunities in order to remain on the night shift. The reason she wanted to work nights was that she had been unable to find alternate care for her child during the day. The night shift has been a steady feature in the workplace since some time in the 1980’s.
9When questioned about her return to work following maternity leave, the claimant acknowledged that she had been lucky that the employer could put her on the night shift. She would not answer the question of what she would have done had the employer been unable to so accommodate her. It is the case that she did not expect the night shift to disappear.
10The evidence before the ESO was that with the elimination of the night shift the claimant was offered a downgraded position on another shift performing work on outbound calls. The evidence before me was quite different and generally left undisputed. With the anticipated elimination of the night shift the employer offered the claimant a supervisor’s job on any of the remaining shifts. The employer was prepared to allow the claimant her choice of shift. There would be no alteration in the terms of her employment other than the scheduled hours of work. Although the ESO noted a change in the type of campaign, the employer’s undisputed evidence was that as supervisor the work was essentially the same, regardless of whether the campaign was inbound or outbound.
11The real issue for the claimant was the amount of notice that she received. It is the case that the employer could have been clearer with the claimant about the actual elimination of the night shift. A series of e-mails requesting information from the claimant (as supervisor) of employees' availability for other shifts was initially equivocal as to the actual elimination of the shift. On February 18, 2000 the claimant sent an e-mail stating “I guess the Overnight shift is coming to an end!” She received more formal notice from the employer via a telephone call on February 25, 2000 and was then aware that the night shift would end March 5, 2000 (March 3 being the claimant’s last scheduled night shift). The employer typically gives two working days notice of a shift change. However that was not in the claimant’s view sufficient time to make alternate arrangements.
12There is no doubt the elimination of the night shift caused significant personal upset to the claimant’s life. It is apparent from her evidence that, although she claimed that the employer had failed to give her sufficient information concerning the change, she was overwhelmingly concerned with the change in working hours. She testified that the most important factor for her was not getting “any notification” of the change.
13The claimant did however meet with Eva Marlow. The claimant was advised of her options and was told that she could have a week’s leave to try to make alternate child care arrangements and if necessary could take an additional week of vacation time. The claimant disagreed that she ought to be required to take any vacation time. It was apparent from the claimant’s evidence that she did not believe that she could find suitable childcare within two weeks as she had been looking for a period of some months prior to that. The claimant’s evidence was however contradictory. On the one hand she stated that she had been looking for childcare in order to move off the night shift, as taking care of her child and working nights was, understandably, beginning to wear on her. Yet she was also clear that had she had more notice of the elimination of the night shift she would have taken that opportunity to look for a different job working a night shift.
14On this point the claimant’s evidence was clear. She was not interested in making alternate arrangements so that she could remain employed with Telespectrum working a different shift. When asked, both in cross-examination and in re-direct, she very candidly stated that she wanted more notice in order to look for a different job on nights. On the evidence, I must conclude that the claimant was not prepared to work any shift other than nights.
15At the end of the first week the claimant wrote to the employer advising that “due to the Customer Service Department and the Overnight shift coming to an end, therefore I have been effectively terminated”. She requested that the employer forward to her a Record of Employment. As noted, the employer took the position that she had quit.
16The conditions of employment signed by the claimant stipulate, inter alia, the following:
As an Employee of S&P Data I agree to perform my job in a responsible manner. I further agree to read and know all present rules and regulations…. The rules and regulations listed herein are not all inclusive.
o I understand that S&P Data operates seven (7) days a week, 24 hours per day and that my schedule may be changed by management in order to accommodate the call volumes. Also, I understand that I may be asked to work in a different area and/or project (other than one for which I was hired) and different hours.
17While the claimant took the position that these terms only applied as a CSR, there is nothing to so limit their application. While some of the other terms are more specific to the work of a CSR, others are generally applicable to an employee in any capacity. The claimant agreed that the work was client driven and fluctuated according to customer demand.
18The parties were agreed as to the test to be applied in determining whether or not there has been a constructive dismissal of employment. That test is articulated in Farber v. Royal Trust Co. 1997 CanLII 387 (SCC), [1997] 1 S.C.R. 846 wherein the Court concluded that where an employer makes unilateral and substantial changes to essential terms of an employee’s contract of employment and there is no agreement on the part of the employee to those changes, the employee, if she leaves her job, will not have resigned but will have been constructively dismissed.
19Does the elimination of the night shift constitute a lay-off? I am not so persuaded. There continued to be the same work available, albeit on a different shift. That is to be contrasted to the QSR’s where, in order to remain employed, employees were downgraded to a lower-rated position. No shift was cancelled. Rather, fewer QSR jobs then existed. In this case, although the particular department that operated on the night shift was eliminated, the employees were absorbed into other departments performing the same or substantially similar work at the same position. A lay-off presupposes a lack of available work.
20To some extent that question also sheds light on the question of whether the change to the claimant’s working conditions constituted a substantial change to an essential term of her employment contract. The change in shift was the only real change to the work. While that is obviously of significance to the claimant in organizing her personal life, I am unable to conclude that it formed an essential part of her employment contract. This is to be contrasted for example to the decision in Laakso v. Valspar Inc. [1990] O.J. No. 158 where the Court found an express term of the contract that the plaintiff work only days. A requirement that the plaintiff work nights (refused by the plaintiff) was found to constitute a constructive dismissal. There is no such evidence before me here.
21There is nothing in the terms of the claimant’s employment that would lead to a conclusion that maintaining the shift was an essential term. To the contrary. The express terms suggest that the employer made it clear that employees would be required to work different shifts. Absent some different representation by the employer, the fact that the claimant had received the benefit of an ongoing night shift for some years does not alter the essential terms of the contract. There is no evidence of any such representation. If anything the employer had sought to persuade the claimant to move off the night shift in order to pursue promotional opportunities.
22The evidence does not support the conclusion that working the night shift became a condition of the claimant’s employment upon her return from maternity leave. Rather the evidence supports a conclusion that the employer was able to accommodate the request while making no guarantees as to what might happen should that shift end. While it was unlikely to have been in anyone’s contemplation at the time that the shift would be eliminated, the fact that the claimant recognizes that she was fortunate that the employer could accommodate her personal circumstances does not elevate that accommodation to a condition of her employment contract. The fact that the claimant turned down promotional opportunities confirms that working nights was a choice made by the claimant. Such unilateral personal choices do not equate to terms of a contract.
23Therefore I find that changing the claimant’s hours of work did not constitute a substantial change to an essential term of the employment contract. The claimant’s decision not to return to work on a different shift therefore constitutes a quit. That conclusion resolves the issue of this appeal.
24However the same considerations also answer the question of whether there was an offer of reasonable alternate work. Whether an offer of alternate employment is reasonable or not is not solely dependent on the employee’s personal circumstances. The test is an objective one based on factors such as the legitimacy of the employer’s business decision, the available work, and the nature of the specific offer. The employer had no work on nights anymore. That fact was the result of a bona fide business decision. The employer offered the claimant the best alternative it had; the same job on any other shift. There was no suggestion in the employer’s evidence that it was seeking to avoid the claimant’s continued employment. To the contrary, it appears to have made this offer to the claimant in the hopes that she would remain. There is nothing to significantly distinguish this case from the decision in Re Chau [1996] O.E.S.A.D. No. 182 where the Adjudicator concluded that a change in shift did not constitute a constructive dismissal and that a reasonable offer of alternate work had been made. In the circumstances here, I find that the offer of alternate work was reasonable and that it was refused.
25In the result, the claimant is not entitled to termination pay in lieu of notice as she quit her employment. Even assuming that these events could be characterized as a layoff, she refused an offer of reasonable alternate employment. Similarly she is not entitled to severance pay, as she was not terminated from her employment.
26This appeal is therefore allowed. Order to Pay #56182 is hereby rescinded.
“M. A. Nairn”
for the Board