Enforcing Employment Standards Act is not a constructive dismissal

Eating at Work for time off

It is not unusual to hear about workers that work through their lunch break in order to leave early and have a condensed work day, or to store up the extra time and be able to leave early on Friday, thereby creating a condensed work week. While this might sound good in theory, the problem is that it is a breach of employment standards legislation. And that exposes the employer to liability.  

In Ontario, for example, the Employment Standards Act, 2000 clearly provides that no employee is to work more than five consecutive hours without a break. They are entitled to a half hour unpaid break, which can be divided into two 15-minute breaks. No matter how you slice it, they cannot work more than five consecutive hours without taking a break. And like all aspects of employment standards legislation, the parties cannot “agree” otherwise.

Of course, it is fairly common for people to work through their lunch break, either on an ad-hoc basis when they have a lot of work to do or have to leave early on a particular day, or as part of a broader plan to condense their work days or work weeks. So what is an employer to do when they speak with their employment lawyer and find out that by allowing their employees to do so, they are breaching employment standards legislation, even if it was the employee That suggested the idea?

As I often tell employers, when a bad practice has become the norm, either deliberately or inadvertently, they must reset the situation. I often use this example when discussing situations where the common practice within the organization is inconsistent with the applicable policy. As many people have commented, “if your practices don’t comply with your policies, then your practices become your policies”.

Often, I discuss resetting the situation in the context of breach of policy as such as employees routinely using the corporate internet access for personal reasons when they’re supposed to be working. If the policy says that this is not to happen, but the reality is that everyone does it on a regular basis, the company should not simply start to impose discipline arbitrarily. Rather, they should reset the situation by advising all staff that despite the past practice, the policy will be enforced going forward. Of course, they should also remind everyone what the policy actually says, along with the consequences of failing to abide by it. Then they should be sure to enforce it consistently.

One challenge is that many employees will see something like the right to condense their work day by working through lunch as a term of their employment, and will see any attempt to change that as a constructive dismissal. This was the situation in the recent case of Peternel v. Custom Granite & Marble Ltd., where the employer attempted to end the practice of condensing work days by skipping lunch.

The employee alleged wrongful dismissal, but ultimately, the employer was successful. In a decision that should provide comfort to employers, the court confirmed that insisting that employees comply with employment standards legislation, even if that is a change in practice, cannot constitute a constructive dismissal. Employers can insist that employees act in accordance with the legislation.

That said, an employer that provides a greater benefit than what is required by the employment standards legislation cannot unilaterally change the terms of the relationship in order to reduce the benefit to the minimum required by employment standards legislation. By way of example, if a manager’s contract provided that they would be entitled to overtime pay after working 44 hours in a week, and the employer subsequently discovered that this was not required by the legislation since managers are exempt from overtime, the employer could not unilaterally change the contract to take away the overtime entitlement. That is very different than insisting that employees comply with the employment standards legislation by not working more than 5 hours without a break.

If you currently allow employees to work through their lunch hour, either intermittently or regularly, It is imperative that you review your practices and insist that everyone comply with employment standards legislation. Even if the employees have agreed to work more than five hours without a break, and even if they insist that they prefer this, that does not change the fact that allowing them to do so is a contravention of the legislation which exposes your organization to liability. We can help you reset the situation and ensure compliance. And if you are an employee concerned about an employer that is changing the terms and conditions of your employment, contact us. We can help you understand your rights.

Stuart Rudner

I am the founder of Rudner Law. In 2016, 2017 and 2018, I was selected by my peers for inclusion in ‘The Best Lawyers in Canada’ in the area of Employment Law and have been repeatedly named in Canadian HR Reporter’s Employment Lawyers Directory (a comprehensive directory of the top employment law and immigration law practitioners in Canada), and was also named one of Canada’s top Legal Social Media Influencers.