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Banana Republic employee fired for working through her break

Posted by on Feb 26, 2013 in HR Issues, Legal, Toronto Star | 1 comment

By: Special to the Star, Published on Tue Feb 19 2013

It used to be that if you worked through scheduled breaks you were viewed as a hard-working employee who was going the extra mile. Now with the threat of overtime lawsuits looming, in some workplaces putting in extra hours could be a firing offence.

That’s what happened to Banana Republic sales associate Andrea Shettleworth. By all accounts, in her nine years at the Mississauga Square One store she was an extremely talented employee. In 2010 she won a trip to San Francisco for selling over $900,000 in merchandise.

However in June 2010, Shettleworth was disciplined by her employer for ‘bossy behaviour’, taking sales away from others and working “off the clock.” One clause of her final written warning said Shettleworth said she “was to go on break when instructed to do so and stay off the sales floor when not working on the clock or doing personal shopping.”

Shettleworth refused to sign the warning and wrote to a senior company vice president complaining that the excessive monitoring of her behaviour was actually discrimination based on her race. She filed an application claiming racial discrimination with the Ontario Human Rights Tribunal in July, 2010.

In mid-September she was placed on a paid suspension pending an investigation into her conduct at work, including working when she should have been on break for 10 minutes on one occasion. She did this before her supervisor returned from lunch and authorized her to do so. On Sept. 14, 2010 she she was fired for violating the terms of the written warning.

The Human Rights Adjudicator Jennifer Scott ruled that Shettleworth was fired because she breached the final written warning, so her racial discrimination claim was dismissed.

Scott agreed that Banana Republic had good reason to enforce the mandatory break policy because if employees did not comply with this policy the company could involuntarily become responsible for overtime pay under the Employment Standards Act.

Other overtime cases are appearing in court. In one 2008 case caregiver Lorraine Condie claimed she worked more than 44 hours per week and so was entitled to overtime. Her employers insisted they neither authorized overtime, nor were aware that she was working more than a standard work week. Even so, the Ontario Labour Relations Board decided she was entitled to $4,200 for the extra hours worked.

On a much larger scale, in June 2012 the Ontario Court of Appeal ruled that two overtime class actions against Canadian banks could proceed. Five thousand Scotiabank employees are claiming $350 million in overtime pay and 31,000 CIBC workers are suing for $600 million in unpaid wages. These claims have not yet been proven in court.

Overtime lawsuits are also a live issue in the U.S. ABC News reported on major settlements by several well-known corporations last September. Starbucks agreed to pay a group of California store managers $18 million to settle an overtime lawsuit and Radio Shack wrote cheques for nearly $30 million to settle a similar case brought by 1,300 former and current California store managers.

Employees who work in certain professions and jobs are not entitled to overtime pay, but these rules are not always straightforward. To find out whether or not you should be paid overtime, check the Special Rule Tool on the Ontario Ministry of Labour’s website.

Sheryl Smolkin is a Toronto lawyer and writer. Follow her on Twitter @SherylSmolkin.

One Comment

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  1. Oak Bridge Consulting

    I think what has happened with the banana republic employee is absolutely wrong. Going on break is not an offense and no management has the right to fire the employee just because of this. I think the employee should have to use his rights and can sue the management for the same. Their are so many labour laws made in the favor of employees that can be used in case of disputes. To know more about the labour law, click here.

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