Flexibility to Start or Leave Work Does Not Impact Original Employment Contract

A recent Ontario appellate decision confirms that employer flexibility in granting occasional requests, such as the time to start and end work, does not always modify the original employment contract.

Quick facts

The employee in this case worked as a scheduler from 8:30 a.m. to 4:30 p.m., with earlier morning work on occasion. The employee claimed that she had a verbal agreement with the employer that she was allowed to arrive any time before 10:00 a.m. to allow her to manage her childcare obligations. However, the employer claimed that he had discussed her irregular arrival times with her and told her that mornings were important to her position. The employer had clarified that she was expected to arrive at work for early mornings, as required.

Before going on maternity leave, the employee was told that when she returned to work, she would have to arrive consistently at 8:30 a.m. every morning. The employee informed the employer that she was unable to secure before-school daycare for her children, and alleged the employer refused to accommodate her childcare needs.

She filed a claim and stated that the employer violated the Ontario Employment Standards Act by not reinstating her to her original position, constructively dismissed her by modifying her employment agreement, and discriminated against her based on family status.


The trial judge did not see eye to eye with the employee’s version of the facts and dismissed her case. The trial judge ruled that the employer did not modify her employment agreement. The company was enforcing her previously agreed upon schedule because of a real business issue requiring early morning attendance. Due to corporate restructuring, it required the employer to more strictly enforce the start time (the employer adequately pleaded material facts that were supported by the evidence at trial.)

Based on the Johnstone v. Canada (Border Services Agency), 2014 FCA 110 (CanLII), 239 A.C.W.S. (3d) 826, and Misetich v. Value Village Stores Inc. 2016 HRTO 1229 (CanLII), [2016] O.H.R.T.D. No. 1253 cases, there was also insufficient evidence of a prima facie case of discrimination on the basis of family status.

The employee appealed, claiming that flexibility in her start time was a fundamental term of employment based on past practice. This could not be unilaterally modified by the employer without providing her with reasonable advance notice of the change.

Unfortunately for the employee, the appeal court agreed with the employer that the 8:30 a.m. start time was a fundamental term of the employment agreement, despite previously allowed flexibility in work hours. No reasonable advance notice from the employer was required in the circumstances.

The employee did not meet either family status discrimination test. Any accommodation efforts by her employer were frustrated because she did not participate and provide necessary information.

Takeaway for employers

Occasionally allowing employees flexibility to deal with personal matters does not mean the employer will be unable to enforce agreed upon employment terms and conditions found in the employment contract.

As stated by the appellate court, “[the trial judge] did not accept that [the employee] could transform the employer’s supportive leniency into a contractual obligation that could be held against it.”

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