Should I be paid for an on-call shift that was cancelled?

This blog originally appeared in the Globe & Mail on March 12, 2024

I work as a server at a restaurant in Toronto that schedules me for on-call shifts. Their policy is to let us know three hours before the shift starts if we’re needed. But if the on-call shifts are cancelled, we don’t get any compensation. Is this legal? It seems unfair that I have to keep those days available. Should we be paid to be on-call?

While the circumstances described may be unfair, they are typically not illegal. In Ontario, employers are generally not prohibited by law from requiring employees to be on-call or from cancelling shifts on short notice without compensation, provided the employees are not obliged to remain at the workplace during this time.

Under Ontario’s Employment Standards Act Regulation 285/01, on-call status may constitute compensable work if an employer mandates employees to “remain at the place of employment” and be ready for immediate duty. However, this provision does not apply if employees are not required to be present at the workplace while on-call.

It is worth noting that the ESA sets out a “three-hour rule”. This generally requires employers to pay a minimum of three hours of pay if an employee’s shift is cancelled or shortened after they report to work, and provided the employee typically works more than three hours. This rule does not apply where a shift is cancelled or shortened prior to the employee reporting for work.

Some employment agreements may outline specific hours of work, and employers may be obligated to compensate employees accordingly. Employees may also have recourse to claim constructive dismissal if the employer fundamentally breaches the employment contract regarding working hours. Such claims can be complicated, and it would be worth seeking legal advice before taking any action.

As an aside, Bill 148, enacted in Ontario in 2017, mandated three hours of pay if an employer cancelled an employee’s shift with less than 48 hours’ notice. Unfortunately, the Making Ontario Open for Business Act, passed in 2018, repealed this provision.

The above is provided as general information only. Questions related to terms of employment or constructive dismissal may involve complex legal issues. Contact us today if you would like to consult with our lawyers.