Employers obliged to keep accurate records on number of hours and days worked by each employee
Agnese Minicucci filed an employment standards application for statutory holiday pay, overtime pay and vacation pay, which she asserted was owed to her by her former employer, Paradise Banquet and Convention Centre. As a result, an order to pay was issued against her former employer in the amount of $5,519.27.
Her employer filed an application with the Ontario Labour Relations Board for a review of the order to pay. The basis for the review was its position that Ms. Minicucci did not work the overtime hours claimed and that the investigation officer erred when assessing the overtime pay at 50 weeks rather than 31 weeks. The employer also claimed a set-off against an outstanding debt owing by Ms. Minicucci to the company in the amount of $4,000.
Ms. Minicucci had worked for the company for approximately 13 years until August 1999 when she resigned. She worked in the kitchen preparing and serving meals at banquets and other events held at the centre as well as preparing takeout meals. During the low season, only one other chef worked with her in the kitchen. During the high season, other staff were brought in to help in the kitchen.
Ms. Minicucci gave evidence at the hearing before the board, alleging that she worked in excess of 60 hours per week (regardless of high or low season) for the entire year prior to her resignation. As such, she claimed overtime based on having worked 60 hours each week. Even in low season months when there were fewer events scheduled, she still worked at least 60 hours per week because there was less staff.
In April 1999 Ms. Minicucci raised the issue of her uncompensated overtime hours with the other chef. The matter was referred to the newly hired general manager who proposed deferring any decision about compensation for overtime hours for a year. His justification for this was to allow him to assess a complete year’s functions.
At the hearing, the company’s evidence was that Ms. Minicucci’s regular work week was 40.5 hours for four days. The general manager did acknowledge that he had no direct knowledge of the actual hours of work for the period in question.
In support of its claim that Ms. Minicucci did not work the overtime hours claimed, the company gave evidence to demonstrate that the level of business activity declined in the winter months after Christmas and rises again in the peak summer months. Similarly, payroll costs also rise and fall in correlation with the level of business activity. The company argued that Ms. Minicucci’s claimed to work in excess of 60 hours per week was not credible because of the reduced level of business activity during low season months.
The board did not accept the argument of the company that the officer erred in awarding Ms. Minicucci overtime pay. The board made reference to the fact that an employer has an obligation under the Employment Standards Act to make and keep accurate records in respect of numbers of hours and days work by each employee. The company in this case kept no such records. The board accepted that it was reasonable and plausible that Ms. Minicucci worked in excess of 60 hours per week, even in the low season given the corresponding reduction of staff.
The board, however, did accept the company’s argument that the officer erred in awarding compensation for the period of a year immediately prior to her resignation in August 1999. The Act permits an officer to award compensation for outstanding money due to a claimant for a maximum period of one year.
However, the relevant period is the year prior to the date the claim was filed, in this case Dec. 6, 1999, and not the date she resigned her employment in August 1999. Because of this, the board varied the order to pay to restrict recovery to money that became due not more than one year before Dec. 6, 1999.
Finally, on the issue of set-off, the board referred to the fact that the Act prohibits an employer from claiming a set-off from wages owing to an employee, except in limited circumstances, none of which applied in this case. If the money is owing as alleged by the company, its recourse to recover this money was not by way of set-off against an order to pay.
However, the board did not accept the evidence of the company that the money was even owing, preferring the evidence of Ms. Minicucci that the money was paid to her “under the table” as part of her agreed comp- ensation package.
For more information:
• Paradise Banquet and Convention Centre v. Di Nardo, Minicucci and Ministry of Labour, Ontario Labour Relations Board, File No. 1132-00-ES, May 18/01.
Her employer filed an application with the Ontario Labour Relations Board for a review of the order to pay. The basis for the review was its position that Ms. Minicucci did not work the overtime hours claimed and that the investigation officer erred when assessing the overtime pay at 50 weeks rather than 31 weeks. The employer also claimed a set-off against an outstanding debt owing by Ms. Minicucci to the company in the amount of $4,000.
Ms. Minicucci had worked for the company for approximately 13 years until August 1999 when she resigned. She worked in the kitchen preparing and serving meals at banquets and other events held at the centre as well as preparing takeout meals. During the low season, only one other chef worked with her in the kitchen. During the high season, other staff were brought in to help in the kitchen.
Ms. Minicucci gave evidence at the hearing before the board, alleging that she worked in excess of 60 hours per week (regardless of high or low season) for the entire year prior to her resignation. As such, she claimed overtime based on having worked 60 hours each week. Even in low season months when there were fewer events scheduled, she still worked at least 60 hours per week because there was less staff.
In April 1999 Ms. Minicucci raised the issue of her uncompensated overtime hours with the other chef. The matter was referred to the newly hired general manager who proposed deferring any decision about compensation for overtime hours for a year. His justification for this was to allow him to assess a complete year’s functions.
At the hearing, the company’s evidence was that Ms. Minicucci’s regular work week was 40.5 hours for four days. The general manager did acknowledge that he had no direct knowledge of the actual hours of work for the period in question.
In support of its claim that Ms. Minicucci did not work the overtime hours claimed, the company gave evidence to demonstrate that the level of business activity declined in the winter months after Christmas and rises again in the peak summer months. Similarly, payroll costs also rise and fall in correlation with the level of business activity. The company argued that Ms. Minicucci’s claimed to work in excess of 60 hours per week was not credible because of the reduced level of business activity during low season months.
The board did not accept the argument of the company that the officer erred in awarding Ms. Minicucci overtime pay. The board made reference to the fact that an employer has an obligation under the Employment Standards Act to make and keep accurate records in respect of numbers of hours and days work by each employee. The company in this case kept no such records. The board accepted that it was reasonable and plausible that Ms. Minicucci worked in excess of 60 hours per week, even in the low season given the corresponding reduction of staff.
The board, however, did accept the company’s argument that the officer erred in awarding compensation for the period of a year immediately prior to her resignation in August 1999. The Act permits an officer to award compensation for outstanding money due to a claimant for a maximum period of one year.
However, the relevant period is the year prior to the date the claim was filed, in this case Dec. 6, 1999, and not the date she resigned her employment in August 1999. Because of this, the board varied the order to pay to restrict recovery to money that became due not more than one year before Dec. 6, 1999.
Finally, on the issue of set-off, the board referred to the fact that the Act prohibits an employer from claiming a set-off from wages owing to an employee, except in limited circumstances, none of which applied in this case. If the money is owing as alleged by the company, its recourse to recover this money was not by way of set-off against an order to pay.
However, the board did not accept the evidence of the company that the money was even owing, preferring the evidence of Ms. Minicucci that the money was paid to her “under the table” as part of her agreed comp- ensation package.
For more information:
• Paradise Banquet and Convention Centre v. Di Nardo, Minicucci and Ministry of Labour, Ontario Labour Relations Board, File No. 1132-00-ES, May 18/01.
