An employment law blog for employers and employees.
Published by Sean Bawden of Kelly Santini LLP.
T. 613.238.6321 | sbawden@kellysantini.com | www.kellysantini.com

Monday, 4 June 2012

Catching a Break

Is an employer required to pay its employees while they are “on break?”  'Not always,' says a recent decision from the Ontario Labour Relations Board.

In a decision released May 29, 2012, Aditya Birla Minacs Worldwide Inc v Bedore, 2012 CanLII 29017 (ON LRB) Vice-Chair Kelly Waddingham resolved that where an employee was free to leave her workstation and was not simply “on call” waiting to be put to work, she was deemed to be not "working" and therefore not entitled to be paid.

The decision came as an appeal by Ms. Rebecca Bedore’s employer, Minacs, of an Ontario Ministry of Labour Order to Pay Wages.  In 2008 Minacs had changed its policy of paying for both of its employees' 15 minute breaks.  Prior to the change, Minacs employees were entitled to two, paid 15-minute breaks, but in 2008 Minacs changed the policy to only pay for one of those two breaks; a decision that clearly upset Ms. Bedore.

On appeal of the Order to Pay Wages, Minacs argued that Ms. Bedore’s 15-minute breaks did not constitute “work” within the meaning of section 6(1)(b)(ii) of Ontario Regulation 285/01, made under the Ontario Employment Standards Act, 2000 because Minacs employees were not required to remain at the workplace.  Minacs further argued that Ms. Bedore’s breaks constituted deemed “not work” as all Minacs employees were entitled to use their break periods to engage in their own private affairs or pursuits.

It was those magic words “engage in their own private affairs or pursuits” that were likely determinative of the appeal.

6 of Ontario Regulation 285/01 provides as follows:

6.  (1)  Subject to subsection (2), work shall be deemed to be performed by an employee for the employer,

(a) where work is,
(i) permitted or suffered to be done by the employer, or
(ii) in fact performed by an employee although a term of the contract of employment expressly forbids or limits hours of work or requires the employer to authorize hours of work in advance;

(b) where the employee is not performing work and is required to remain at the place of employment,
(i) waiting or holding himself or herself ready for call to work, or
(ii) on a rest or break-time other than an eating period

(2)  Work shall not be deemed to be performed for an employer during the time the employee,

(a) is entitled to,

(i) take time off work for an eating period,
(ii) take at least six hours or such longer period as is established by contract, custom or practice for sleeping and the employer furnishes sleeping facilities, or
(iii) take time off work in order to engage in the employee’s own private affairs or pursuits as is established by contract, custom or practice;

(b) is not at the place of employment and is waiting or holding himself or herself ready for call to work.

With respect to the deemed no-work provision under section 6(2)(a)(iii) Regulation 285/01, Vice-Chair Waddingham observed that:

For the section to apply it must be clear that the employee was entitled to take the time off work to pursue “private affairs or pursuits”, and was not simply “on call” waiting to be put to work.

Given Ms. Bedore’s keycard activity demonstrating that she frequently left Minac’s property during her breaks, and the fact that others were frequently observed by the Human Resources person at Tim Hortons during those breaks, the Board had little difficulty in resolving that Minacs’ employees were not “working” on their breaks.  The appeal was therefore granted.

Some people cannot catch a break.  Although Ms. Bedore caught two, her employer was not obligated to pay her for them.

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As always, everyone’s situation is different.  The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.

Sean Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer.  He tweets from @SeanBawden.

6 comments:

  1. This company also deducts your pay for bathroom breaks as you have to log off your phone instead of having a special code to keep you logged in the phone like other companies. From what I understand it is against the human rights laws to get your pay deducted for taking reasonable bathroom breaks. Is this true?

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    1. It may be. Human rights legislation is complicated and every case turns on its facts. If you would like an opinion specific to your situation, please contact me at sbawden@kellysantini.com.

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  2. They also force you to take Voluntary time off (VTO) without pay.

    Lets say your schedule is 9-5 with 2x15 min breaks and 1x30 min unpaid lunch break then part way through a shift you may get another 30 min unpaid break added to your lunch as vto and said you have to take it (though not all the time and not everyone). We are told it is because call volume is low. Is this something they can do?

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    1. Again, it is probably best to seek an individual opinion specific to your situation.

      For general information about labour standards, you may also wish to consider consulting the Employment Standards Branch of the Ontario Ministry of Labour. http://www.labour.gov.on.ca/english/es/

      To your question, "can they do" something, the answer is clearly yes they can, because I assume that they are. What you really mean, I believe, is, "can they get away with doing that?" That's a different question.

      When someone does something 'illegal,' two things can happen: (1) the state can punish the person who breaks the law, and (2) if someone is harmed, the person who is harmed may be entitled to an award of 'damages.'

      Consider speeding. Can someone speed? Of course they can, many people do. Can people speed and get away with it? Some will, but others will not. In committing the legal act, the state will punish the speeder, by providing some sort of penalty, such as a fine. However, unless someone is injured by the illegal act, no one other than the state is entitled to damages.

      So my question to you is, suppose I tell you that the employer cannot legally do what it is that you say they are doing (and I am NOT providing any opinion one way or another), what are you prepared to do about it? Unless you are prepared to enforce your rights, either by complaining the the Ministry or commencing a civil lawsuit, it may not matter whether the actions are legally permissible or not.

      If you would like assistance from a lawyer with respect to either, I would be happy to be of service, subject to an agreement on fees.

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  3. Would not removing a Paid Break be deemed and Constructive Dismissal? Also this paid Break is used to calculate what one's vacation pay is. This company use to also pay upto 5 sick day's and has stopped that, ( which also affects one's Vacation Pay ). Normally this would not be an issue, except that 7 months after that Vacation year they try to tell people that they were OVER Paid for Vacation time and want the employee ( making poverty line wages ) the money they think they owe! BUT can't come up with the proper figures to show them how they came to that calculation!

    http://www.labour.gov.on.ca/english/es/pubs/guide/termination.php
    "A constructive dismissal may occur when an employer makes a significant change to a fundamental term or condition of an employee's employment without the employee's actual or implied consent."

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    Replies
    1. Constructive dismissal is a complicated issue. Whether a change is "significant" enough to justify an employee ending the employment relationship is always a complicated question of fact.

      If you are looking for an opinion with respect to your case, I would be happy to be of service. However, commenting on this blog does not establish a solicitor-client relationship.

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