Employers should proactively provide rest breaks: Case

by The Findlaw Team

The legal requirement for employers to provide employees with rest and meal breaks in New Zealand is covered by Part 6D of the Employment Relations Act 2000.

Under Part 6D, employers must provide employees with rest and meal breaks in line with section 69ZD

But does the law require the employer to force – or at least remind – an employee to take their breaks? An Employment Relations Authority case (Duffy v Kindercare Learning Centres Ltd (2013)) has shed some light on this question.

Unaware of rest break entitlements

A cook at an early childcare centre was a recent immigrant who was unaware of the statutory right to rest and meal breaks provided by Part 6D of the Employment Relations Act 2000.

She took an unpaid lunch break of half an hour each day, but did not take the two paid 10-minute rest breaks to which she was entitled under the Act.

She was aware that teaching staff took breaks, but was unaware this entitlement extended to herself and the other non-teaching employee, who also failed to take rest breaks.

Discovered rest break entitlements

After she resigned, the cook became aware of Part 6D of the Act through her husband, who discovered it when perusing the Department of Labour's website.

She raised a personal grievance for unjustified disadvantage in relation to her lack of rest breaks.

The company agreed that the cook had been entitled to take breaks and didn't take them, but said that she was aware of her entitlement (or should have been) and chose not to take them. The company accepted that it did not require or instruct the cook to take rest breaks.

Employer “must provide” breaks

The Employment Relations Authority held that the law is clear; an employer must provide breaks. The word "must" implies compulsion. To "provide" is to supply or furnish something and the duty to provide breaks falls upon the employer.

The Authority determined that the employer must be proactive and ensure what is required is done. Whether or not the cook knew, or should have known, about her entitlement was not relevant. It was not enough for the company to sit back and do nothing, given the statutory obligation.

The Authority concluded that the company did not ensure the provision of breaks, in breach of the duty imposed by the Act.

The cook was deprived of a benefit as a result and was therefore disadvantaged. Her personal grievance claim succeeded.

Compensation for hurt

Turning to the question of remedies, the Authority observed that the cook did not seek a compliance order or penalty, which is the normal way of addressing an anomaly such as this.

The Authority would not order payment of wages for untaken rest breaks because that time had already been paid - the issue was whether or not the activities taken during that time were appropriate.

The Authority did make an award of compensation for the hurt the cook suffered as a result of the disadvantage. It held that $750 was appropriate.

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