It is a fact of life. Employees sometimes need flexibility to start or leave work at different times than originally agreed with their employer. Sometimes this is because of child care issues. A recent appellate decision, Peternel v. Custom Granite & Marble Ltd., confirms that employer flexibility in granting occasional requests does not always modify the underlying employment contract.
What Happened
The employee worked as a scheduler. Her schedule was 8:30 a.m. to 4:30 p.m. with earlier morning work on occasion. This was a verbal agreement between the parties. The employee claimed she was allowed to arrive any time before 10:00 a.m. to handle childcare obligations (which the employer disputed). It was agreed that the employer had told her mornings were important to her position. On occasion, the employer had discussed her irregular arrival times with her, and clarified that she was expected to arrive at work for early mornings as required.
The employee went on maternity leave. While on leave, the employee was told that when she returned to work, she would have to arrive consistently at 8:30 a.m. The employee claimed she was unable to secure before-school daycare for her children, and that the employer refused to accommodate her childcare needs.
She sued. She claimed the employer violated employment standards legislation by not reinstating her to her original position, constructively dismissed her by modifying her employment, and discriminated against her based on family status.
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