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.
