Laura Dawson v. West Garden Buffet, 1999 CanLII 20152

[1999] OLRB REP. JULY/AUGUST 752

0110-98-ES Laura Dawson, Applicant v. West Garden Buffet, and Ministry of Labour Responding Parties

BEFORE: Timothy W. Sargeant, Vice-Chair.

APPEARANCES: Laura Dawson for the applicant; Sue Lee, Foon Ho Lee, Ming Deng, Qun Xi Deng for the Responding Party, Frank Camilleri for the Ministry of Labour.

DECISION OF THE BOARD; August 12, 1999

Decision

This is an employee appeal under section 67 of the Employment Standards Act (the "Act") against the refusal on April 1, 1998 of an Employment Standards Officer to issue an order to pay (file #50-005949).
The employer operates a restaurant. The employee, Ms. Laura Dawson, was a waitress from approximately December of 1994 to June of 1997 with varying hours of work.
In issue is the allegation that the employer in effect deducted $1.00 per hour from the wages of Ms. Dawson without authorization.
What led to this claim was a complaint from the kitchen staff (cooks, helpers, busboys etc.) that the waitresses received very substantial tips and such tips were not being shared in any fashion with the kitchen staff. There is no dispute that a meeting was held with the employees on this matter. According to the employers' witnesses management proposed that there be a pooling arrangement concerning tips. The waitresses refused but according to the management all the waitresses instead agreed to pay $1.00 per working hour in a pool to be shared with the kitchen staff. Ms. Dawson testified she never agreed to such a scheme.
In any event after the meeting, for the next two or three pay cheques the employer began deducting $1.00 per hour from the cheques of the waitresses. Apparently there was a complaint and the employer obtained information that this procedure was not proper. The employer then ceased to deduct the $1.00 per hour.
It is at this stage that the evidence conflicts. Ms. Dawson testified that when pay cheques were handed out by management, management would calculate the number of hours worked and:

(i) either before issuing the cheques would require the employee to pay $1.00 for each hour worked to management for the kitchen staff; or

(ii) if cashing the cheque for the employee, the employer would deduct $1.00 for each hour worked from the amount given the employee.

Thus for example if Ms. Dawson worked 30 hours and was owed $180.00 the employer before releasing the pay cheque to Ms. Dawson would require her to pay $30.00, or if cashing the cheque for her would only pay her $150.00.

The management witnesses Ms. Ming Deng, Ms. Sue Lee (manager) and Mr. Foon Ho Lee (owner) denied that they ever required an employee to either pay any money before receiving a cheque, or if cashing a cheque ever deducted a sum. They testified that waitresses voluntarily put the required $1.00 per hour in a pot, which was then taken by a member of the kitchen staff to be appropriately shared. Mr. Foon Ho Lee testified it was not his business how tips were to be shared and the Company was not involved. It was an arrangement agreed upon by the waitresses themselves. He had never received any complaint on this matter from Ms. Dawson and he found this surprising as he was the owner.
Ms. Dawson testified that she had never voluntarily put funds into a "pot" but that she was required to pay $1.00 per hour as previously described or she would not receive her cheque. She testified that on those occasions when she had refused to pay $1.00 per hour the cheques had not been given to her but had stacked up until she did make such payment. She agreed she had never complained to Mr. Foon Ho Lee as he was in the kitchen, but she had on numerous occasions made her position known to others in management and particular to Ms. Lee. Ms. Lee denied that Ms. Dawson ever complained. Ms. Dawson had not quit her employment as she conceded that tips were good and she needed a job (though at the end of her employment she was not working many hours as she was involved in other endeavours). She had first filed a complaint in December of 1995 while she was still an employee.
The employer filed a number of forms, titled "Consent Form". This forms stated "I, [employee's name] have consented to give one dollar per hour from my gratitudes to the kitchen staff at the West Garden Buffet in Brantford". There was also a place setting our the employee's name, signature and date. No such form was filed that contained the name of Ms. Dawson. The employer conceded it could not produce any such form with Ms. Dawson's name. Ms. Dawson testified she never signed such a form.
In answer to a question as to why she would not share with the kitchen staff, Ms. Dawson verbally replied that in her view it was the responsibility of the employer to pay the kitchen staff. She further pointed out that as far as Income Tax was concerned she was assessed on the total amount on the cheque, and thus being taxed in her view on money she never received.
Though wages are defined not to include tips and other gratitudes, in this instance though dealing somewhat with the concept of tips it is clear on the evidence that the waitresses had not agreed to a pooling arrangement regarding tips. Clearly what seemed to be contemplated is that kitchen staff would benefit from a payment from waitresses based on their hours of work. This payment thus was not tied to the amount of tips and gratuities received by the waitresses involved but rather to the number of hours the waitresses worked. In the initial stages the employer clearly and admittedly deducted a dollar per hour from the wages of the employee involved.
Section 8 of the Act provides:
Except as permitted by the regulations, no employer shall claim a set-off against wages, make a claim against wages for liquidated or unliquidated damages or retain, cause to be retained to the employer, or accept, directly or indirectly, any wages payable to an employee.

Section 14(1) of Regulation 325 provides:

(1) Despite section 8 of the Act, an employer may set off against, deduct from, claim or make a

claim against or retain or accept the wages of an employee where,

(a) a statute so provides;

(b) an order or judgment of a court so requires; or

If Ms. Dawson' s evidence is accepted I have no trouble in determining that in reality the employer was deducting $1.00 per hour from her wages contrary to section 8 of the Act. Clearly no written authorization permitting such deduction from the wages of Ms Dawson was ever produced.
A determination thus comes down to assessing the evidence before me. In doing so I have considered such factors as the demeanor of the witnesses and the clarity of their evidence. I have also considered what seems most reasonable and probable in the circumstances, having regard to the evidence as a whole.
In my view understandably the employees in the kitchen wished to participate in the tips and gratuities given to waitresses. Management felt it was fair that the kitchen staff should participate as much of their efforts led to the success of tips and gratuities. At the meeting held with the waitresses it is apparent that the waitresses did not agree that there should be a pooling of tips and gratuities. Instead a majority of waitresses agreed to contribute $1.00 per hour based on their hours worked. I find however that Ms Dawson never agreed to participate.
The employer thought this should be condition applied to all waitresses as is evident from its initial deduction of $1.00 per hour worked deduction directly from the wages of waitresses. When the employer found that employee deductions might be prohibited by law, it turned to a new scheme as in its view there was an agreement by the waitresses to pay $1.00 per hour based on the number of hours worked.
While I find that the employer never intended to benefit directly from such contributions, there is an obvious advantage to the employer in having a kitchen staff which feels it is at least participating in the attainment of additional funds.
The employer seemed to know it required written authorization to deduct monies from a waitress; as it attempted to have consent forms signed by the waitresses involved.
While I attribute no bad faith to the motives of the employer, I was impressed by the evidence of Ms. Dawson and accept her evidence, that she was required to pay a dollar per hour for the hours she worked before receiving her cheque, or alternatively if she cashed her cheque an extra dollar an hour was deducted by the employer from the sum given to her. I find that such an amount was deducted by the employer to benefit the kitchen staff. I further find that she never consented or agreed to have such an amount taken from her wages.
For the reasons set out above I have decided that the employer has breached section 8 of the Act.
In view of the paystubs presented in evidence, I am satisfied that Ms. Dawson is owed the sum of $1078.50 (based on a total of 1078- 1/2 hours worked)
I therefore order that the employer pay to Ms. Dawson the sum of $1078.50.