Worker couldn't always go to shore to have lunch; claimed he was always on duty while in boat
This edition of You Make Call involves a fishery employee who wanted to be paid when he ate his lunch in his work boat.
Bernard Arbour was an enforcement officer for the New Brunswick Department of Agriculture, Aquaculture and Fisheries, on a one-year contract starting on April 1, 2011. He worked on a Zodiac boat in the Bay of Fundy inspecting various sites and his workday included one-half hour unpaid lunch period, which he was free to take whenever he wanted to fit it into his day.
Due to the time involved launching the boat and the tide conditions in the bay, Arbour often took his lunch while out in the boat. There were usually two employees in the boat at any one time, so one could eat his lunch while the other controlled the boat. The boat was always kept running during lunch breaks because of the need to control the boat in the tides and waves. Employees who ate lunch on the boat were free to do what they wanted unless there was an emergency.
Though his contract specified his hourly rate excluded one-half hour for lunch, Arbour felt he should be paid for that time because he couldn’t be totally off-duty while in the boat. While he could eat his lunch and do what he wanted, he argued the boat was his workspace and he was limited to what he could do. He filed a complaint with the director of employment standards — which later went to labour arbitration — requesting he be paid for an additional one-half hour for each day he worked.
The department argued Arbour was not required to work during his lunch periods and his contract specified the unpaid one-half hour for lunch. There was another employee on duty in the boat while he took his break and he could do whatever he wanted. This was a proper lunch break as indicated in the contract, said the department.
You Make the Call
Was Arbour entitled to be paid for lunch breaks he took while at sea in the boat?
Was he not entitled to be paid because he wasn’t working?
If you said Arbour was entitled to be paid for his lunch breaks spent in the boat, you’re right. The arbitrator pointed out most employees who work in offices are able to leave the work site during their lunch break if they so choose. This gives them an opportunity to “eat and relax away from any obligations related to their work,” said the arbitrator. However, when employees can’t leave the work site, it “becomes difficult to determine whether they are actually free to enjoy the break.”
Though having to remain at the work site didn’t necessarily mean a lunch break was working time, the arbitrator found the small work space of a Zodiac boat had little room for an area where Arbour could get away from work during his break. Also, Arbour and his co-workers had a continuing obligation to operate and monitor the boat, so even if the employer wasn’t requiring them to do anything, that constituted a specific, though minimal, task through which the employer continued to exercise control over Arbour.
The arbitrator agreed with an earlier decision by the director of employment standards that Arbour was entitled to be paid for the occasions when he spent his lunch break on the Zodiac boat.Additionally, Arbour had been terminated on Nov. 11, 2011, following the dispute over lunch pay —Arbour had charged the extra one-half hour on days he had been out in the boat —because “it wasn’t working out” and the “rules were causing him grief and anxiety.” The arbitrator found Arbour’s inquiries, though “persistent,” were an attempt to get a decision on his rights under employment standards and not insubordination. In addition to the lunch pay, the department was ordered to pay $4,762.50 in lost wages. See Arbour v. New Brunswick (Department of Agriculture, Aquaculture and Fisheries Fredericton), 2012 CarswellNB 453 (N.B. Labour & Employment Bd.).