Previously, Farinha hadn’t objected to working six-hour shifts every other Sunday but when the length of those shifts were set to increase by a couple of hours, while his overall weekly hours remained the same, he decided to opt out.
The board ruled that Highland Farms Inc. was not legally obligated to alter Farinha’s new shift pattern as his refusal to work Sundays came after the employer implemented the new rota.
“When an employee exercises a statutory right, an employer should proceed with caution and ensure that the employee is not penalized or disadvantaged,” warns Pugen.
The employer’s actions in the case were ideal, reveals the McCarthy Tétrault lawyer. Farinha’s request was immediately met and he not punished in any way for refusing work; “He was treated the same as all other employees in terms of the shifts offered.”
“The employer's consistent treatment of the employee in comparison to all other employees made it very difficult for the employee to claim that he was singled out for reprisal,” concluded Pugen. “The adverse consequence (i.e. the loss of pay) was the employee's own doing.”