This employee returned from parental leave. When she did, the employer affirmed to her that she had to arrive at work at 8:30 a.m. Before her leave, the employee alleged, the employer had allowed her to come in later in the morning (due to childcare issues).

The issue is, if the employer had been flexible on her start time previously, particularly due to her representation that she had childcare responsibilities, is it wrong for the employer to require that she attend at the usual time thereafter, particularly when she is returning from parental leave?

Firstly, there was no written employment agreement – a strike against the employer.

Secondly, because there were no written terms, the case escalated into a ‘he-said, she-said’ dispute, which is always very costly to adjudicate in the Superior Court of Justice – win or lose.

The employee claimed in the litigation that the employer had: constructively dismissed her (by changing her fundamental terms of employ), violated her statutory employment rights and discriminated against her contrary to the Ontario Human Rights Code (based on family status discrimination).

The Court dismissed her claims.

The employer’s flexibility did not amount to changing the employment relationship, even if those were the facts of the case.

If anything, the Court perceived the employee to be the one attempting to unlawfully change the employment relationship, not the other way around.

Therefore, when employers are flexible periodically, the Court will recognize this and not allow the employee to take advantage of the employer doing so.

The Case:

Peternel v. Custom Granite & Marble Ltd., 2019 ONSC 5064 (CanLII)


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