Entitlements to Meal Breaks

Most employees are entitled to a little coffee break every five consecutive hours of work of their established regular workday

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.

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