When Changing Your Hours Becomes Constructive Dismissal

Can My Employer Cut My Hours Without Notice?

Most employees understand that being fired without reasonable notice can give rise to a wrongful dismissal claim. Fewer realize that a significant, unilateral change to their working conditions, even one that leaves them technically “still employed,” can amount to the same thing. This is what lawyers call constructive dismissal.

One of the triggers for constructive dismissal claims is a change in working hours. Whether an employer moves an employee to a different shift, piles on additional hours without compensation, or reduces their hours so dramatically that their income shrinks, the legal question is the same: was this change so fundamental that it amounted to a repudiation of the employment contract? A unilateral change to your hours is one of the signs of constructive dismissal that courts take seriously when it affects your pay or working life.

This post explores what Canadian courts have said about each of those scenarios, draws out the key principles, and offers practical guidance for employees who find themselves in this situation. If you think you may already be in this situation, the Calgary employment lawyers at Cashion Legal can help you understand your options. Book a case evaluation today.

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The Legal Foundation: What Makes a Change “Fundamental”?

Before getting into the specifics of hours, it helps to understand the legal test.

An employer cannot unilaterally make a fundamental or substantial change to an employee’s contract of employment without reasonable notice. If they do, the employee is entitled to treat the contract as at an end and sue for damages in lieu of notice, exactly as they would if they had been outright dismissed.

The test for whether a change rises to that level is objective: would a reasonable person, looking at the circumstances, consider this a fundamental breach going to the root of the employment relationship? No single factor is determinative. Courts look at the nature and scope of the change, the employee’s role and history with the employer, the reason for the change, whether it was communicated clearly, and what it means practically for the employee’s life and livelihood.

Crucially, the employer’s motive does not excuse the breach. An employer may have perfectly legitimate business reasons for restructuring. They may be responding to technological change, an economic downturn, or operational necessity. None of that changes the employee’s contractual rights. As one court put it plainly: there was no agreement as to who was to bear the risk of changing conditions made at the time of hiring or thereafter.

With that framework in mind, let’s look at the three most common hour-related scenarios.

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Scenario 1: A Change in the Timing or Type of Hours (Shift Changes)

Perhaps the most nuanced category involves not the number of hours worked, but when those hours fall, and whether an employee can be required to move to a different shift.

Courts have consistently held that this is highly fact-specific. There is no universal rule that a move to shift work constitutes constructive dismissal. Whether it does depends on what was agreed, explicitly or implicitly, at the outset of the employment relationship and throughout its course.

The following factors point toward a finding of constructive dismissal:

• The employee was originally hired specifically for day shift work
• The employee’s preference for days was known to and accepted by the employer
• The employer had previously accommodated the employee’s request to return to day work
• The employee had never worked the shift they are now being asked to take on
• The industry does not universally operate on a 24-hour basis such that shift work was a foreseeable expectation

Conversely, courts have declined to find constructive dismissal where:

• The nature of the industry (such as continuous 24-hour production) made shift work an objectively foreseeable requirement
• The employee had previously agreed, expressly or impliedly, to accept shift work as needed
• The degree of shift work involved was only nominal
• The employee had transferred into the role knowing shift requirements were possible

A key principle that emerges from the case law is that an employer’s acceptance of an employee’s limitations becomes part of the contract. If an employer agrees to transfer an employee back to day work because of their personal circumstances, that agreement does not evaporate simply because the business later changes direction. The employer’s conduct has set expectations that cannot be unilaterally reversed.

It is also worth noting that where an employee genuinely cannot accept a new shift for reasons such as childcare obligations, those same reasons apply whether the new shift is offered permanently or temporarily. An employee is not required to accept a position on a temporary basis when accepting it permanently would be impossible. Moreover, this situation would raise genuine human rights concerns.

Lesson from the case law: An employer who knows an employee works days because of childcare obligations, and who has previously accommodated that need, cannot later impose a shift change without reasonable notice and expect the employee to simply absorb it. The accommodation itself becomes a term of the contract.

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Scenario 2: An Increase in Hours (Uncompensated Overwork)

A different but equally serious problem arises when an employer expands an employee’s duties and hours without corresponding compensation. This scenario is increasingly common in workplaces where roles evolve informally and employees, out of loyalty, ambition, or pressure, absorb more and more responsibility without the terms of their employment ever being formally revised.

From a legal standpoint, two distinct issues can arise.

The first is breach of contract. If an employee is promised compensation for overtime, whether expressly or through a clear understanding with their supervisor, and the employer later refuses to honour that promise, the employer has breached a term of the employment contract. This is true even where the promise was not confirmed in writing, provided the evidence supports a finding that the commitment was genuine and reasonably relied upon. A supervisor who tells an employee to track her overtime hours so she can be compensated creates a contractual obligation. That obligation does not disappear because senior management was not copied on the conversation.

The second is the operation of employment standards legislation. Alberta’s Employment Standards Code sets out minimum rates for overtime hours and cannot be contracted out of. An employer cannot avoid paying overtime rates by giving an employee a modest pay raise and calling it a day. Courts have confirmed that employment standards provisions are incorporated as terms of the employment contract itself, and employees can enforce them through civil action rather than being limited to the employment standards complaint process.

The practical implication is significant. An employee who has been quietly working 50- or 60-hour weeks for months or years, relying on a supervisor’s assurance that they will be compensated, may have a substantial claim for breach of contract and under the Employment Standards Code, even after leaving employment.

Lesson from the case law: Employers who accept the benefit of significant overtime work, and who have reason to know it is being performed, cannot later disclaim responsibility for paying it. Employees in this position should keep careful records of their hours, even informally. A personal calendar or diary logging hours worked can be powerful evidence.

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Scenario 3: A Decrease in Hours

Where a reduction in working hours is significant enough to meaningfully reduce an employee’s income, it can constitute constructive dismissal, but the threshold matters.

Courts have drawn a distinction between modest operational adjustments (which an employer may arguably make without triggering a constructive dismissal claim) and reductions so substantial that they amount to a repudiation of the contract.

A reduction from full-time to three or four days per week, a drop of roughly 20 to 40 percent in working time and corresponding income, has been found by courts to cross the line. Notably, the manner in which reduced hours are structured can compound the harm. Where an employee’s remaining hours are scheduled such that they work eleven of every fourteen days, making it effectively impossible to find supplementary part-time work elsewhere, that too is a relevant consideration.

An employer who reduces hours is also not excused simply because the reduction flows from genuine business difficulty. The fact that a significant drop in customer traffic caused reduced work does not make it legally permissible to offer an employee a fundamentally reduced position without notice. An employment contract is not automatically frustrated just because business conditions have become more challenging. Impossibility of performance cannot be established simply because a contract has become less profitable.

One subtlety in this area: a reduction in hours is not always the same as a reduction in the hourly rate of pay. Courts have indicated that while reasonable adjustments to hours may sometimes be permissible, unilaterally requiring an employee to work the same hours for less money, a straight wage cut, will almost always constitute constructive dismissal.

Lesson from the case law: Employees should not conflate “my hours were reduced” with “I was constructively dismissed” without considering the scale of the reduction. But where the reduction is substantial, materially affecting income and livelihood, the legal protection is real and meaningful.

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What Reasonable Notice Has to Do With All of This

Even where a change to working hours is legitimate, an employer must provide reasonable notice of the change before implementing it. Simply informing an employee that their future prospects are better if they accept a new role, or that the business is moving in a different direction, does not constitute adequate notice of termination.

To provide proper notice of a fundamental change, an employer must make clear, unambiguously and positively, that the employee’s current position will end on a specific date if they do not accept the new terms. Vague warnings about job security, or encouragement to transition into a new area without a firm timeline, fall short of what the law requires. An employee who is never told in concrete terms “your job will end on [date] unless you accept these new terms” is entitled to treat the point at which they are actually let go as the moment of wrongful dismissal. Learn more about wrongful dismissal here.

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Practical Tips: How to Respond to a Change in Hours

If your employer has changed, or is proposing to change, your working hours in a way that concerns you, here is how to approach the situation carefully and protect your rights.

1. Do not resign in the moment. If you walk out in response to a change, you may be seen as having quit voluntarily, which complicates or potentially eliminates your claim. Stay calm, continue working if you can do so safely, and take time to get advice.

2. Document everything. Write down what was said to you and when. Keep records of your hours worked, the changes proposed or implemented, and any correspondence. If important conversations happen verbally, follow them up in writing. Something as simple as “Further to our conversation today, I understand that my hours will be changing to X. I wanted to confirm this in writing” can be valuable later.

3. Know your history. Courts place significant weight on what was agreed, expressly or by conduct, when you were first hired and throughout your employment. Think back: were you hired for a specific shift or schedule? Has your employer accommodated a particular need in the past? Have there been representations, even informal ones, about your role?

4. Consider whether the change is truly fundamental. Not every variation in hours gives rise to a constructive dismissal claim. A minor scheduling adjustment is different from a dramatic shift change or a major cut in hours. Before taking any action, it is worth understanding where your situation sits on that spectrum.

5. Do not accept the change without qualification. If you continue working under the new terms without objecting, a court may find you have accepted the change. If you intend to preserve your legal rights while continuing to work, put your objection in writing: “I am continuing to work under protest while I seek legal advice. I do not accept the proposed changes as a variation of my employment contract.”

6. Understand your mitigation obligations. Even if you have been constructively dismissed, you have a duty to take reasonable steps to find new employment. Limiting your job search too narrowly, or stopping looking altogether, can reduce the damages you are entitled to. Keep records of your job search efforts.

7. Get legal advice early. The law in this area is genuinely fact-specific. The outcome often turns on small details about the history of the employment relationship, what was said (and not said), and what the parties understood. An employment lawyer can help you assess your situation before you make any irreversible decisions.

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A Final Word

Changes to working hours sit at an interesting intersection of employment law. They are often driven by genuine operational need, yet they can still fundamentally alter what an employee signed on to do and what their livelihood depends on. The law does not require an employer to be acting in bad faith for an employee to have a claim. It requires only that the change be fundamental and unilateral.

Whether you are an employee navigating an unexpected scheduling change or an employer considering restructuring your workforce, understanding these principles can make the difference between a managed transition and costly litigation. Learn more about constructive dismissal here.

Frequently Asked Questions About Constructive Dismissal