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.