No Obligation For Employer To Accommodate Employee's Personal Interests
For the most part,* an employer is not obligated to accommodate an employee's personal interests or commitments when setting a work schedule. A recent arbitration decision, set out below demonstrates, this principle.
* As with many rules of law, there are exceptions to this statement. For example, if the personal interest or commitment was related to a protected human rights ground such as family status, accommodation may be necessary. Legal advice should be sought related to the particular facts of your situation.
In Teamsters Local Union 847 v Maple Leaf Sports and Entertainment, the employee was a part-time server who had worked for the employer for over four years prior to being terminated for not complying with the employer's attendance policy. Initially, the employee worked part-time while in school but upon graduation, she gained full-time employment elsewhere. The full-time employment made it impossible for the employee to work the restaurant's evening shift which generally started at 4:30 p.m. The collective agreement governing the relationship between employer and employees required the employees to work up to 24 hours a week. Additionally, the collective agreement allowed the employer to set the weekly schedule subject to seniority and the availability of other employees.
In 2014, the employer instituted an new policy which stated that any employee that missed more than 10% of his or her annual scheduled shifts without a justifiable excuse such as a medical requirement, would be subject to termination. At the six month point, the employee was given notice of his or her attendance rate so s/he could adjust his or her attendance and comply with the policy.
At the six month point, the dismissed employee had missed 29% of her scheduled shift. Her attendance improved but by the annual review, she still had been absent for 17% of the scheduled shifts. The employer dismissed her and grieved the dismissal.
The union did not dispute the policy but argued that the employer had a duty to accommodate the other employment and that the employer should have changed the start time of the scheduled shifts.
The arbitrator dismissed the complaint. Nothing in the collective agreement created an obligation for the employer to accommodate outside interests or personal commitments in setting the work schedule. Rather the employer was entitled to set its hours of operation and the work schedule.
The Lesson: As stated above, some accommodation may be required if the need for it is based on human rights grounds. If the desire for accommodation is based primarily on personal, discretionary choices, it is likely that an employer will not need to provide it. As always, these situations are highly dependent on the factual matrix and legal counsel should be consulted.
Teamsters Local Union 847 v Maple Leaf Sports and Entertainment, 2015 CanLII 80931 https://www.canlii.org/en/on/onla/doc/2015/2015canlii80931/2015canlii80931.pdf
The content and the opinions expressed here is informational purposes only and does not constitute legal or professional advice. Nor does reading or commenting on it create a lawyer/client relationship with the author. I encourage you to contact me directly at adrianlawoffice@gmail.com if you have specific legal questions or concerns.
The author encourages you to share this article on social media.
Follow me on Twitter @gwendolynadrian