A decision released this week by the Ontario Human Rights Tribunal provides an opportunity to discuss an issue that baffles many HR students and practitioners. How can an employer be responsible for hours worked by an employee that they did not authorize?
The decision is really about unlawful reprisals under the Human Rights Code. But the facts ae interesting. The employee was dismissed in part for working through her break. The Tribunal notes that it is important for employers to be able to strongly enforce breaks because of their liability under the ESA for all time worked by employees, authorized or otherwise.
Check out the case, which involves an employee of Banana Republic at Square One mall in Mississauga. It’s called Shettleworth v. GAP (Canada).
The EE was a fanstastic salesperson, winning awards for her sales levels. However, she was given a “final written warning” about her abrupt behaviour with coworkers and for ‘working off the clock’, meaning she would punch out for her breaks, but then return to the floor and work. After receiving this warning, the EE filed a human rights complaint alleging that she was being singled out for special adverse treatment due to her race. Before a hearing was held into the complaint, the EE was terminated.
She had violated the Final Warning. In particular, she had worked during her break to finish serving a customer before asking her supervisor if she could do so. The supervisor gave her permission, but by that point, she had already been working off the clock for 10 minutes. Also, she had given out coupons to customers after the date had passed to distribute those coupons.
Issue: Was the dismissal a retaliation for filing a human rights complaint?
The EE was dismissed for violating the Final Warning, not because she had filed a human rights complaint. Section 8 of the Code prohibits reprisals:
8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act, and to refuse to infringe the right of another person under this Act, without reprisal or threat of reprisal for so doing.
The Tribunal noted that this section requires the employee to establish that part of the employer’s intention was to punish the employee for filing a human rights complaint. Motive matters in a reprisal allegation, unlike in a case of discrimination on the basis of a prohibited ground.
Here, the Tribunal found that the breach of the Final Warning was the reason for the dismissal. The fact that a supervisor granted the EE permission to work through her break didn’t change the fact that she had already took it upon herself to do so before she got around to asking for permission. Also, the fact that other employees also distributed the coupons past the expiry date, and that the EE’s boss at the store wasn’t even aware of the expiry date, did not change the fact that the EE violated a rule. In short, there were business reasons for dismissing the EE unrelated to the human rights complaint.
This interesting part of this case is the employer’s treatment of breaks. Canada’s banks are buried in nasty class action litigation because employees claim that they worked through breaks and after their scheduled hours to balance their floats, and complete other necessary tasks. The banks have argued, among other claims, that these hours were unauthorized and therefore the bank is not responsible. Here, the employer took the position that it had a right to fire an employee for working through a break, because otherwise it could be liable for breached of the ESA.
The Tribunal agreed with this point in finding that this was the real reason for the dismissal, and not a reprisal for filing a human rights complaint (see para. 26).
Look at Section 20 of the ESA. It requires a break every of 30 minutes every 5 hours. Section 22 then requires overtime pay for any hours worked more than 44 in a week, and Section 17 prohibits an employee from working more than 8 hours in a day (unless some other longer day is specified), and 48 hours total in a week.
It is no defense for an employer to say “we didn’t ask her to work” through her break or to consent to her working longer hours. That’s because Section 6 of Regulation 285/01 to the ESA makes clear that “work” is performed under the ESA when it is “in fact performed by an employee although a term of the contract of employment expressly forbids or limits hours of work or requires the employer to authorize hours of work in advance”.
This Section is explained in the ESA Policy Manual as follows:
“Section 6(1)(a)(i) states that work is deemed to be performed where work is done and the employer has permitted or suffered the work to be done. The purpose is to indicate that it is not necessary that the employer have explicitly agreed to or approved of the employee doing the work. The employer is considered to have permitted work to be done where it fails actively to prevent the employee from performing work. …
Section 6(1)(a)(ii)…establishes that work is deemed to be performed when it is in fact performed, even though the employment contract prohibited the performance of the work or the contract required the employee to obtain approval of the employer to perform the work and such approval was not obtained. …
For example, work was deemed to be performed where the employee’s actual hours of work exceeded those for which the employee was scheduled (Re Weiche-Huttenkofer Corp. Ltd.), and where the employee performed work that was not authorized in advance as required by the employer (Re 469754 Ontario Ltd.). The fact that the work performed by the employee was unnecessary (i.e., it was not required to be done) does not render s. 6(1) inapplicable (see Re Keyes Supply Co. Ltd.); nor does the fact that the work was unsatisfactory (see Re Living Institute and Re Elgin Lumber & Packaging Corp. Ltd.).”
Questions for Consideration
Do you agree with the law’s approach, which leaves employers’ liable for work performed by an employee even if the work was not authorized by the employer?
Why is the law designed in this way?
What steps should an employer take to ensure that employees work only their scheduled hours and nothing more?