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Employees Working Through Lunch? It Could Be Risky!

By November 7, 2018April 29th, 2021Employment Law

Recently we discussed a case involving an employee who failed to give her employer info about her childcare needs and thus failed to prove discrimination.

Now we want to draw dentists’ attention to another important part of that case – working through lunches!

The Situation

“We don’t have time for lunches”

It is not unusual to hear about a dental office that is so busy that the team doesn’t have time to take a break in the middle of the day, but they leave early or “bank” the time in lieu of that lunch break. While that may work on an operational basis, the problem is what is in the Employment Standards Act: no employee can work more than 5 consecutive hours without a 30-minute unpaid break (or two-15 min breaks).

Even if you have “agreed” (verbally or in writing or just by virtue of doing it for years and years) that the employee will skip their break, the law is clear that such an agreement is void – no employer can get around the minimum standards of the ESA.

So… Simply Switch Back!

The next problem that occurs is this: you want to ensure your office is compliant with the law, so you tell your team that you will be forcing everyone to take their 30-minute unpaid break. One employee speaks up and complains that you are taking away 2 hours of pay per week and the employer can’t make that unilateral change. They do a quick google search and accuse you of constructive dismissal (by saying that the employer made a significant unilateral change to employment terms without agreement by, or reasonable notice to, the employee).

That employee may think they are right, but the case of Peternel v. Custom Granite & Marble Ltd., 2018 ONSC 3508 that was recently decided in the Ontario Superior Court of Justice would tell them that they are wrong.

The Recent Decision

The employee had worked for 3 years for the employer and needed to change her schedule due to child care issues. The employer refused to give the employee the schedule changes. The employer’s reason was that the employee would not give them the reasonable information they requested (and the employer was proven right by the judge!). At the same time, the employer was attempting to end the long-standing practice of condensing workdays by skipping lunch.

When the employee sued the employer (and lost) for discrimination and wrongful dismissal, she included her claim for constructive dismissal through the employer taking away pay by forcing unpaid lunch breaks.

The court sided with the employer on this issue as well! The decision confirmed that insisting employees comply with the minimum standards in the ESA (even if that is a change in practice or policy) cannot constitute a constructive dismissal.

The court confirmed that employers can insist that employees act in accordance with the ESA at any time in the employment relationship.

There is an important caveat to note here.

Where an employer provides a greater benefit (like a paid 60 min lunch) than what is required by the minimum standards in the ESA cannot then unilaterally change that term in order to reduce the benefit to the minimum in the law.

As an example, if your office manager was always paid for overtime for the 15 years that she worked for you, and you now just realize that managers are EXEMPT from being paid overtime in the law (yes that is true), the dentist cannot just unilaterally change the contract and take away the paid overtime entitlement that has been established for years.

So, if you currently allow your team to work through lunch and leave early, you should know that there is some risk in continuing that policy. All dentists should review their policies and procedures regularly (like at the end of each year), review or implement contracts for every team member, and insist that every worker comply with all minimum employment standards.

Your team may tell you that they don’t mind, or even prefer, working without a break and leaving early. But that doesn’t change the fact that permitting them to do so is technically your practice breaking the law and you could get fined or sued because of it.

If you want to discuss employment contracts, lunch breaks, forced vacation (yes that’s a thing) or any other employment issues, give us a call.

DMC