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Debra
Debra, Lawyer
Category: Canada Law
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I have a dispute with my boss. She insists that I must take

Customer Question

Hello, I have a dispute with my boss. She insists that I must take one hour of unpaid hour, and I am not taking it, working my work hours without a break for lunch. As I am an IT professional, and as I know IT professionals as exempt from the article that says "must take 30 min break". Who is right, me or my boss. Please help.
Submitted: 1 year ago.
Category: Canada Law
Expert:  Delta-Lawyer replied 1 year ago.

I hope this message finds you well, present circumstances excluded. I am a licensed attorney with over a decade of employment law experience. It is a pleasure to assist you today.

The issue here is whether or not you are an hourly/salary employee and whether or not you have supervisory authority (if you are a salaried employee).

If you don't mind me asking, are you a salaried employee that makes for than $23,600 per year?

I look forward to hearing back from you and assisting you.

Best!

Customer: replied 1 year ago.
I work for the City of Toronto, permanent salaried employee, since 2004.
Expert:  Delta-Lawyer replied 1 year ago.

I am sorry....I am a US attorney and don't fee comfortable answering a Canadian law question. I will opt out so that you can find a professional better suited to answer your question.

Expert:  Debra replied 1 year ago.

I am a lawyer in Ontario and I'm happy to answer your question.

Before I do can you please just let me know whether there is anything in your employment contracts that talks about a lunch break or other rest period and whether this would be paid for or not.

Customer: replied 1 year ago.
I am unionized, and in collective agreement it says that I can have an unpaid lunch break of "not more then 1 hour". And my manager says that it means that I "must take 1 hour", but I say that it means that I can take "0 to 60 minutes" as I wish,
not "must" but "may", and not 60 min., but 0 to 60, that includes 0, which means I may not take lunch break at all. I work 7 hours a day, and they pay me for 7 hours a day. I work from 9 to 4, but she wants me to stay till 5, having 1 hour for lunch. But I want to leave at 4. I don't take a lunch break, I just eat my lunch while I work. I think she wants to fire me for this, but
I don't see I violate any law or collective agreement. I think she is wrong when she interprets law and coll.agr. Can you please help me with interpretation of the Empl. Act and Coll. Agr.? Or who can? Thank you!
Expert:  Debra replied 1 year ago.

Is there a valid reason for the employer to want you to be there until 5 o'clock?

Customer: replied 1 year ago.
No, not at all. She just want me to follow the rules, laws, coll. agr. But I don't see any violations. She sent me Empl. Act. and Coll. Agr. - those parts that describe taking lunch break. And we have a dispute interpreting them. She insists that I "MUST take 1 hour lunch break " not to violate the Emp. Act and Coll. Agr. And I say "not more then 1 hour" means "0 to 60 minutes" and she insists it means "60 minutes". Am I wrong or she? If I want to leave at 4pm, she expects me to start work at 8 am, but still take 1 hour lunch break. But I come at 9am and work 7 hours till 4pm. It's just she can not understand that "not more then 60 min" means "0 to 60" and that IT professionals are exempt from the Emp. Act article that says "must take 30 min break". I am exempt, but she is not aware of this exemption, and it is not my fault that she does not know this exemption exists, that she does not know the Emp. Act. She asked Labour Departement for clarification and they referred to that article about "must take 30 min", but they didn't send exemption part. And also they sent part of coll. agr. that says "not more then 1 hour", so they concluded that I "MUST" take 60 minutes of lunch break. But I read Emp. Act and Coll. agr. and I don't see any violation, if I don't take a lunch break at all. Please help.
Expert:  Debra replied 1 year ago.

I don't see a violation either.

The provision is to protect you and not to make you have a lunch break if you don't want to do so.

I suggest that you have your union rep send her a letter explaining that the union does not believe you are in breach of the agreement and that it is your right to waive the hour lunch break if you decide you don't need it. So long as the employer allows it if you do then all is well on both sides.

Customer: replied 1 year ago.
But what about Emp. Act exemption. What I understood not she nor Labor Department representative are aware of that exemption. How do I make them read the Law? They send me that according Emp. Act. I "must take 30 min. lunch break" , but they say nothing about exemption, like it does not exist or I am not an IT professional. What should I do about it? How can I prove that I am IT professional and that exempt from that article? My manager follows instructions from Labor Department and I see they interpret the Law in wrong way, or maybe they didn't realize that I am "IT professional" and exempt. But now my manager does not want discuss this matter at all. But asked me to check-in, check-out, and then she will take my "7 hours", not "8 hours" to get me fired, as I understood. How can I make her continue discussion and make her realize that she does not know the Emp. Act. either?
Expert:  Debra replied 1 year ago.

The point is is that while the employer may have to offer it you cannot be compelled to take it.

What you can do is first contact Theb employment standards branch and discuss this with them further and then tell her what they say and then have your union rep speak to her as well.

Customer: replied 1 year ago.
What I am looking for right now is independent (from my union or employer) legal advice regarding understanding of Employment Act, so in case if they try to fire me or take another legal "punishment" I want to hire an independent lawyer to prove that I am right, if I am, but I am still in doubt, am I right or not. I am trying to understand this: "Do I understand Employment Act or not? "must " I take 30 min lunch break or I am exempt from this article. I need independent legal advice on this matter. Please help to understand The Employment Act regarding taking lunch breaks.
Expert:  Debra replied 1 year ago.

I cannot provide you with independent legal advice. I am not permitted to provide any legal advice at all because you are my client. I can only provide general legal information. And, I have already stated several times that you are not required to take the break it is just that your employer must provide it.

As well, I have stated several times now that you should call the employment standards branch tomorrow to confirm this with them.

Customer: replied 1 year ago.
I am not at work tomorrow and she starts a legal action against me on Monday or maybe tomorrow. I don't know where to go for help.
Customer: replied 1 year ago.
you are not required to take the break it is just that your employer must provide it." I got it. Thank you for all your help.
Expert:  Debra replied 1 year ago.

You go to the union rep for help.

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