Month: February 2024

Workers in Ontario are entitled to meal breaks while at work. Under Ontario’s Employment Standards Act, a worker is prohibited from working more than 5 consecutive hours of work without a 30-minute meal break. Workers can agree to take multiple shorter break periods instead of one 30-minute break, but the total break period time must be 30 minutes. Workers should be aware that the ESA does not require these eating periods to be paid by the employers. Nevertheless, under employment law, workplace contracts can provide for specific break time. If an employer attempts to remove a contractual term like paid break time, this could result in significant changes in compensation, and workers may be protected under workplace constructive dismissal laws.

Role of an Electronic or Written Agreement

Constructive dismissal may apply if significant changes to the terms of employment are made by the employers. If a worker’s contract allows for paid break time during consecutive work hours, but the employer attempts to take this away, this could result in a significant change of employment, and indicate an intention of the employers to no longer be bound by the contract of employment. According to the Supreme Court of Canada in Potter v. New Brunswick Legal Aid Services Commission, constructive dismissals occur when a contractual term is breached, and such a breach is sufficiently serious. This includes things like a change in compensation or even hours of work, both of which would apply to the removal of a paid eating period at workplace. However, a minor breach of the employment contract may not justify a constructive dismissal; nevertheless, many small changes as opposed to one big change may also indicate the employer’s intention to no longer be bound by the contract of employment.

Breach of Entitlements

While workers are entitled to break times every 5 consecutive hours at work, many workers have unfortunately been compelled by employers in Ontario to work during their breaks. The Ontario Labour Relations Board has held that workers working into their coffee breaks are entitled to compensation for the time spent working. In Faucher v. 1078845 Ontario Inc., the OLRB held that Ms. Faucher was compelled by her employer to work past her eating periods and was not appropriately compensated for her labour. Consequently, the Board ordered Ms. Faucher to be paid for the time she worked during her eating period. This can also extend into issues of overtime pay. If an employer compels a worker to work past the eating period they are entitled to, the worker may work long hours, enough to earn overtime pay. In Kimberley Hadfield v 1529150 Ontario Inc. o/a The Staffing Connection and Director of Employment Standards, the OLRB acknowledged Ms. Hadfield frequently worked through the break time she was entitled to, and in doing so worked past the consecutive hours of overtime threshold. Consequently, the OLRB ordered that Ms. Hadfield be paid the outstanding wages she was owed on an overtime basis. The OLRB can therefore order employers to pay workers their unpaid wages if they breach the eating period entitlement.

When Serious Interference of an Employment Lawyer is Needed

Some workers may be hesitant to raise concerns about break time being skipped for fear of reprisal by their employers. However, workers should be aware that they are protected under the ESA from reprisals for exercising or attempting to exercise their rights under the act. In 9727868 Canada Inc. operating as Plug & Play Solutions v. Justin McMurray-Zitman, the OLRB held that Mr. McMurray-Zitman was terminated in reprisal for attempting to exercise his rights to a meal break. The board held that if any part of the decision to terminate the worker was made because the worker was trying to exercise their rights under the ESA, like an employee exercising their entitlements to coffee breaks, then the decision to terminate is tainted and in breach of the ESA. Furthermore, the employers must prove that the decision to terminate the employee was not made due to a worker’s attempt to exercise their rights. Failure to do so will be viewed by the OLRB as termination in reprisal against a worker. In this case, Mr. McMurray-Zitman was provided with compensation for the employer’s breach of the ESA. More generally, an employer is prohibited from threatening a worker with termination or discipline or terminating an employee or disciplining a worker in response to the worker attempting to exercise their rights under the ESA. In such circumstances, the board has the power to order the worker to be compensated or even reinstated because their rights have been breached.

In Ontario, workers have the right to take a leave of absence from work for personal illness. Under Ontario’s Employment Standards Act, a worker who has been employed by an employer for at least two weeks is entitled to take a leave of absence without pay due to personal sickness, illness, or medical emergency which can be proven by healthcare professionals. Currently, the ESA limits sick leave to three (3) unpaid days off from work per year. Workers seeking to take the time off under the ESA must inform their employer about it, either before they take the sick days, otherwise the worker must inform their employer as soon as possible that they will be taking the leave of absence.

Is Doctor’s Note a Reasonable Evidence?

Under the ESA, employers can require workers to provide evidence when taking sick leave. However, employers can request a sick note written by licensed healthcare providers. The evidence must be reasonable in the circumstances. Labour Arbitrators have provided some guidance regarding what constitutes reasonable evidence when requesting leave with a sick note. In Ontario Energy Board v. Society of United Professionals, Arbitrator Surdykowski held that employers are entitled to notice of time off with medical notes and the expected duration of the absence for legitimate work force management and absenteeism control purposes. According to Surdykowski, the onus is on the worker to establish that they were taking time off appropriately and must provide satisfactory explanations and reasonably required documentation for their leave. However, Surdykowski also states that employers are only entitled to the least degree of a worker’s private medical or other information necessary for the purpose. The primary question is what information is reasonably required for the circumstances of the sick leave. The arbitrator establishes that employers are entitled to know only that the worker is unable to work due to illness or injury, the expected return date, and what the worker can or cannot do. The length of the expected leave is an important consideration regarding what sort of medical evidence will be reasonably required, and longer leaves of absence due to sickness may warrant employers requiring updated or additional medical information.

Arbitrator Surdykowski continued by establishing a general standard for workers providing medical certificates and other evidence to their employers. So long as a medical document has a qualified doctor or regulated healthcare provider certifying the worker is unable to work for a generally described medical reason, and the duration of the absences is also estimated, the document will generally be sufficient to justify employees absence. Employers have no immediate right to a worker’s medical history, diagnosis, symptoms, treatment plan, or prognosis other than the doctor’s notes and expected return date to work. If employers want to have access to these particulars, they must first demonstrate a legitimate need for such information before they can compel workers to disclose these details. There are significant constraints around what details and evidence an employer can require from workers regarding sick notes. However, the Arbitrator’s decision also indicates that workers should provide reasonable information regarding doctor’s sick note.

Administrative Rules for Termination

Failure to provide reasonable evidence regarding sick notes could result in your employer conducting a workplace investigation. As stated above, workers have the onus to establish time off work is justified rather than the result of wanton absenteeism. Consequently, it is prudent for workers to provide reasonable information regarding their sick leave to avoid any allegations of unexplained absenteeism. Nevertheless, while absenteeism may justify termination for cause in limited circumstances, the Ontario Court of Appeal in Minott v. O’Shanter Development Company Ltd., consistent with the Supreme Court of Canada’s later ruling in McKinley v. BC Tel, held that missing a day of work unexplained will rarely justify just cause in the absence of prior warnings, especially if the worker has long worked for the employer.

Workers who are terminated after taking a leave with a doctor’s note, may have recourse to the anti-reprisal provisions in the ESA. Workers are protected from termination when they exercise or attempt to exercise their rights under the ESA. The Ontario Labour Relations Board in 2325671 Ontario Limited v. Susan Benson has held that if any element of a worker’s termination or discipline was due to the worker seeking to exercise their rights under the ESA, this constitutes reprisal. In other words, if a worker taking time off with doctor’s notes was in any way related to their termination or discipline, this would constitute reprisal under the ESA. Since sick note leave and other leaves of absence are covered under the ESA’s anti-reprisal provisions, the Board in Guy Morin v. Huawei Technologies Canada Co. has made it quite clear that termination for exercising or attempting to exercise these rights constitutes reprisal. In Haley Thompson v. 580062 Ontario Inc. (c.o.b. Slainte Irish Gastropub) the Board held that reinstatement with backpay is the presumptive remedy for the termination in reprisal, otherwise the worker can be provided monetary compensation. Overall, workers have a strong remedy when they exercise or attempt to exercise their rights under the ESA and are terminated or otherwise disciplined.