Canada: Out To Lunch: To Pay Or Not To Pay?

Recently, the New Brunswick Labour and Employment Board (the "board") considered when employees must be paid for their lunch breaks. This issue arises from time to time and is determined based on the facts of each case (Arbour v. New Brunswick (Agriculture, Aquaculture and Fisheries), 2012 CanLII 46857 (NB LEB)).

What happened

Bernard Arbour ("Arbour") was employed as an enforcement officer with the New Brunswick Department of Agriculture, Aquaculture and Fisheries (the "employer"). As part of his duties, Arbour was required to inspect various sites on the Bay of Fundy using a Zodiac boat with an outboard motor. Given travel time and the time involved in launching the boat in the bay, Arbour was normally at sea in the small boat during lunch. Because of the nature of the tides and the time it would take to get to a wharf, it was not a realistic option to pull the boat up on shore or to tie it up at a wharf in order for Arbour to have his lunch on shore. A disagreement developed between Arbour and the employer over whether employees should be paid for the designated meal break when on the boat. Arbour's claim for paid lunch breaks while on the boat resurfaced several times over approximately a year and he was ultimately terminated.

The board was asked to determine two issues: whether the employer breached the Employment Standards Act (the "Act") by failing to pay Arbour for his designated half-hour lunch period on identified days that he was working on the boat in the Bay of Fundy; and whether Arbour was unjustly dismissed as a result of his attempts to access rights under the Act.

What the board said

The board identified the critical issue to be determined as whether Arbour was subject to having to perform duties related to his job while on his lunch break. Two factors that are to be examined in answering this question are (1) whether the employee was required to remain at the workplace during the time in question and (2) the degree of control the employer exercised over the employee during the time in question.

In this case, Arbour's contract of employment specifically stated that lunch periods were unpaid, but Section 4 of the Act provides that the provisions of the Act override any agreement between an employee and an employer. You cannot contract out of the Employment Standards Act so, if Arbour was found to have been required to work during his designated lunch break, then the requirement of the Act that employees be paid for hours worked would override any written agreement to the contrary.

In considering whether Arbour was required to remain at the workplace during his designated lunch break, the board noted that there was no practical opportunity for him to do anything other than to remain in the boat during his lunch period. The board noted that what was unique about this case was the very small work space (the Zodiac boat) and the difficulty of finding what might be considered "free space" where an employee could escape the work environment. The very confined space on the boat was found to severely limit the opportunity to have a break from the work environment.

The board then addressed the second factor, the degree of control the employer exercised over the employee during the lunch break. The board found that Arbour was assigned a job to do and was not continually supervised in performing that job, but that in this case, he had an obligation to operate the boat safely and efficiently at all times and that he was not relieved of this obligation during the lunch break.

For these reasons, the board concluded that Arbour was subject to having to perform duties related to his job while on his lunch break and so was entitled to be paid for the occasions when he was on the boat during his lunch period.

In determining the second issue, whether Arbour was terminated in violation of the Act, the board concluded that he was terminated as a result of his attempts to be paid for his lunch period when working on the boat. He was therefore unjustly terminated for having sought entitlements under the Act, and was entitled to compensation for loss as a result.

What this means for you

Most employees are able to leave the work site or area during their designated lunch break and have an opportunity to eat and relax away from obligations related to their work. When employees are unable to leave the work area during their lunch break, it sometimes becomes difficult to determine whether they are actually on a break. However, having to remain at a work site during a lunch break does not automatically require that the lunch break be classified as working time – the board has determined on other occasions that "eating one's lunch at the employer's premises is one of the necessary incidents of work".

The circumstances of the Arbour case are unique, but are noteworthy for employers whose employees are required to remain on the premises during breaks and to hold themselves ready to work so as to be able to respond to an emergency (or other) call. Such employees cannot be said to be free of work obligations during their break – they continue to be under the direction and control of their employer and may be entitled to be paid for that time.

The Arbour case is also a reminder to employers that they may not terminate employees for claiming or pursuing the rights and benefits available under the Employment Standards Act.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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