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Copperlaw
Copperlaw, Lawyer
Category: Canada Law
Satisfied Customers: 1378
Experience:  Retired cop. Now a Lawyer. Drug expert, breath tech, negotiator, traffic specialist. Criminal, Family, Civil and more.
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Hi, My daughter got fired last week. She told me that it was

Resolved Question:

Hi,
My daughter got fired last week. She told me that it was busy at work. Her manager came in and asked her how she was and she told him she was tired because she has been working so hard. He told her to suck it up because she had to work overtime. She said " no when my shift is over I am going home". He went into the office and after a few minutes he came back and told her that someone else was coming so she could go home.
The next day, a different manager told her she was fired because the other manager had told them that she was not willing to work and that he had to call someone else to work her shift.
Is this legal.....
Submitted: 1 year ago.
Category: Canada Law
Expert:  Copperlaw replied 1 year ago.

Copperlaw :

Hi There

Copperlaw :

Well it sounds like what happened and what the other manager, who ended up firing your daughter was told, are two very different things

Copperlaw :

In Alberta, as in most Provinces, overtime, for most workplaces, is optional

Copperlaw :

There are exceptions to employments standards, hours of work, overtime etc, however they apply to specialized areas of industry.

Copperlaw :

If your daughter has a job in retail, fast food, etc, then this is not one of those exceptions. Let me know what type of workplace it is and I can tell you if it's one of the exceptions. (I expect it's not, but that's an assumption)

Copperlaw :

So, for most workplaces, employment standards make overtime optional for employees. Further, an employees hours of work must be posted somewhere prominent and visible and any changes to the hours of work, either start time or end time, must be made and posted 24 hrs in advance

Copperlaw :

An employer cannot change the hours of work during the shift. This is in fairness to the employee and their life. It is not uncommon for employees to schedule other things outside of or around work, daycare, appointments etc

Copperlaw :

So it is recognized that an employer cannot change these schedule hours of work without at least 24 hrs notice to the employee

Copperlaw :

It sounds like the first manager is not well informed regarding Provincial employment standards and further, provided misinformation to the second manager.

Copperlaw :

Is there a timeclock or other "punch-in" system at the workplace to show when your daughter started and left?

Copperlaw :

This would confirm for the second manager that she in fact worked her assigned shift and did not refuse to work her shift

Copperlaw :

I would suggest that your daughter speak with the second manager, or the store manage/owner and make them aware of the situation, the misinformation provided by the first manager, the fact that she worked her regular shift, was not able to work the overtime that day and was within her rights to decline (no reason is required for why she couldn't, as this could raise human rights issues for the employer for asking).

Copperlaw :

If she's asked why she couldn't work overtime, she does not need to provide an answer. She worked her scheduled shift and could not work overtime for "personal reasons" or for reasons that she does not have to divulge to her employer

Copperlaw :

using the term "personal reasons" should get them to back off, if they know anything about employment standards/human rights/management as this is very treacherous territory for an employer with potential to enter the realm of human rights issues

Copperlaw :

It sounds like your daughter was wrongfully dismissed. Whether or not she has a valid case depends on a number of things such as how long she's been employed there, work history, whether she was probationary, etc etc

Copperlaw :

Please let me know if you require anything further as I am happy to follow-up

Customer:

Yes, my daughter asked to speak to the manager that send her home and the one that was telling her she was fired but they said no because they trust in what the manager told them

Customer:

she works in a Restaurant that is family owned. All the managers are somehow related to the owner.

Customer:

They told her when she started working there about a year ago that overtime was optional

Customer:

She did not complete her shift that day because the manager called another girl to take over her shift and do the overtime hours

Customer:

and he sent her home....at that moment she thought it was nice of him because she was tired

Copperlaw, Lawyer
Category: Canada Law
Satisfied Customers: 1378
Experience: Retired cop. Now a Lawyer. Drug expert, breath tech, negotiator, traffic specialist. Criminal, Family, Civil and more.
Copperlaw and 3 other Canada Law Specialists are ready to help you
Expert:  Copperlaw replied 1 year ago.

Hi

 

I've switched the format of this chat as the chat interface seems to be having technical issues as I could not see your response, however I can see them now.

 

If she was sent home by the manager, then she did not "fail to work her shift". I expect that in order to cover themselves, they'll likely try to claim that there were "performance issues" which is a typical fall back position where employers have jumped the gun in firing an employee.

 

Ultimately, there could be a complaint with the labour board for terminating her because she wouldn't perform "optional" overtime, which is essentially what happened. However this would require retaining a lawyer to fight it and lead to some expense, which in the end may not be worth the cost and stress involved.

 

If they are terminating her, they'd generally need to provide her with a couple weeks pay as severance if they're terminating without cause, but again I expect that they'll have some excuse as to why they've terminated her, claiming cause.

 

This doesn't sound like a place your daughter would want to go back to now anyhow.

 

You may want to send them a letter detailing what occurred and the fact that she in fact worked her scheduled shift up until the time she was told to go home, which means that the employer ended her shift early, she didn't leave before her shift was over then. You could ask for appropriate severance and make them aware that the actions of their manager are in contravention of employment standards and see what they come back with. It's possible that nobody's ever called them on this before, so the fact that you reference employment standards in a letter may make them think twice about their actions.

 

If you'd rather pursue it, I'm happy to help get you referred to a local lawyer with whom you can consult.

 

If you have any further questions, or require clarification, please let me know as I am happy to discuss this further.

 

 

Customer: replied 1 year ago.

Okay.....thanks for your help. Our daughter is looking for another job and doesn't want us to spend any money or time to get her job back. Like you said.......she doesn't want to go back to work there anyways.


We might consider writing a letter to the owner. Anyways ...thanks for your advise.

Expert:  Copperlaw replied 1 year ago.
You are very welcome. I am always happy to help.
Copperlaw, Lawyer
Category: Canada Law
Satisfied Customers: 1378
Experience: Retired cop. Now a Lawyer. Drug expert, breath tech, negotiator, traffic specialist. Criminal, Family, Civil and more.
Copperlaw and 3 other Canada Law Specialists are ready to help you

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