1067-99-ES George Balis, Applicant v. 1207665 Ontario Inc., Operating as Steak Queen Restaurant and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 40 010193
BEFORE: Bram Herlich, Vice‑Chair.
APPEARANCES: George Balis for the applicant; Da Lian Sun for the responding party; Heidi Ann Lazar-Meyn for the Ministry of Labour.
DECISION OF THE BOARD; July 17, 2000
This is an application to review the decision of an Employment Standards Officer to not issue an order.
The applicant was employed by the numbered company operating as Steak Queen Restaurant (the “employer”) as a cook until his termination in December, 1998. Subsequent to this termination, the applicant brought a claim against his employer. It was investigated and decided upon by the officer and, for the most part, was rejected. The officer did determine, however, that the applicant was entitled to certain amounts in respect of termination pay and vacation pay and it appears, on the basis of the officer’s report, the numbers contained therein and cheques which were subsequently issued, that these amounts have been paid. It was the applicant’s claim for overtime pay, however, which was largely rejected. And it is that claim which is the bulk of what he sought in the hearing before me.
Even to say that the facts in this case are elusive is to exaggerate their clarity or certainty. Neither the applicant nor the employer appears to have kept or produced any useful records which would substantiate the assertions they each made about the facts of the case.
The applicant claims that he had an hourly rate in excess of $11.00, although he concedes that no hourly rate was ever agreed to with his employer. He deduces his hourly rate on the basis of what he claims he was paid (some $550 per week) for his regular hours. Despite that hourly figure, the applicant claims that he was paid at the rate of only $10.00 per hour for overtime hours rather than at time and one half his regular rate. The applicant produced and relied upon a document he prepared (in or around January 2000) which purports to provide a summary of hours worked for all of 1997 and 1998. Based on that, he claims that he was underpaid by almost $7.00 per hour for the 651 hours in 1997 and the 265 hours in 1998 he claims to have worked as overtime hours. The total value of this part of the claim is therefore in excess of $6000.00.
The applicant also claims amounts in respect of unpaid holiday pay for work claimed to have been performed during the two year period. In respect of this claim, however, I was provided even less information (i.e. virtually nothing) in the way of particulars or evidence of what may or may not have transpired on any of the holidays in question and, accordingly I am unable to consider this aspect of the claim any further.
The applicant also claims vacation pay which it is asserted was not paid. In this regard I note again that vacation pay was part of the entitlement found and directed by the Employment Standards Officer and subsequently paid by the employer. Thus, to the extent that any continuing claim for vacation pay can be maintained or supported, it must be restricted to vacation pay generated by any other amounts that I find to be owing.
I also note that the applicant’s initial claim appears to have been made on December 15, 1998 shortly after his termination. The claim reaches back, however, to events as early as January, 1997. Section 82.3(1) of the Employment Standards Act (the “Act”) provides as follows:
82.3 (1) In a prosecution or proceeding under the Act, no person is entitled to recover money that became due to the person more than six months before the date on which the facts upon which the prosecution or proceeding is based first come to the knowledge of the Director.
However, while that section appears to limit recovery to amounts which became due within 6 months of the date the claim is filed (see, in this regard section 82.4(1)[1]), Section 82.3(4) provides:
82.3
(4) A person may recover money that became due before the date determined under subsection (1),
(a) if the money became due to the person not more than one year before that date;
(b) if, in the same prosecution or proceeding, the person is entitled to recover money that became due not more than six months before that date; and
(c) if the money referred to in clauses (a) and (b) became due to the person by virtue of the same provision of the Act or the same provision of the contract of employment.
I accept the view advanced by counsel for the Ministry of Labour (unchallenged by any of the other parties) that the combined effect of these sections is that the applicant is unable to advance any claim for unpaid overtime amounts where such moneys became due more than one year prior to the filing of his complaint. Thus, his application, insofar as it pertains to claims which predate December 15, 1997, must be rejected.
Before I briefly canvass the employer’s version of the facts, a number of comments about the reliability of the applicant’s evidence and claim are in order. First of all, I note that the applicant was generally unresponsive and aggressive in his responses to questions put to him either by the Board or by other parties. It was difficult to determine whether or not he was deliberate in his evasiveness. In any event, however, his demeanor and general presentation did not serve to generate great confidence in the reliability of his testimony.
But even apart from the general lack of confidence generated by the applicant’s aggressive and unresponsive nature, the evidence he presented is inherently unreliable. If the applicant, as he claimed, kept any sort of ongoing record of the hours he worked for the employer, no such documentation was provided to me. The applicant claimed that these documents were used, in preparing for this hearing with his counsel, to generate the summary document referred to earlier. He further claimed that after preparing the summary he disposed of the source documents. I find that assertion incredible – particularly if, as the applicant claimed, the source documents were used in consultation with counsel. I find it is more likely that no such documents ever existed and that the summary prepared is a long after the fact attempt by the applicant to recreate hours worked over a two year period. I might have been more inclined to repose more confidence in its reliability, had it been honestly presented to me as such.
There is another aspect of the applicant’s evidence which I find particularly troubling. On his version of events, he was regularly, consistently, and significantly underpaid for a period of over two years. The applicant did not strike me as one who would shrink from asserting a claim or one who would for a period of two years consistently accept a level of remuneration that was significantly less than what he believed his employer had promised to pay. And while the applicant did claim to have raised the issue with his employer at various points (again no specific details were provided), it is clear that he never followed through on the matter. Thus, there is some significance to the fact that the applicant only took steps to truly assert and vindicate his claim after he was discharged in circumstances which (although they need not be recounted here) included allegations of serious improprieties on his part.
By and large, I have found the applicant’s evidence to be inherently unreliable.
Unfortunately, although perhaps for different reasons, neither have I found the employer’s evidence to be particularly helpful. And while the lack of reliable records is certainly a disadvantage both parties share in this case, the employer’s failure in this regard is clearly contrary to its statutory obligations (see section 11 of the Act).
Unfortunately, the employer’s evidence also suffered because English was clearly not the first language of its chief and only witness, Mr. Sun. There were, consequently, frequent occasions upon which he appeared to have had some significant difficulty understanding the questions being put to him. That lack of comprehension was frequently amplified in his responses.
And yet Mr. Sun, like the applicant, was quite adamant about certain facts in respect of which he had kept absolutely no records. (And while he claimed that his accountant kept such records, none was produced before me.) He consistently asserted that the applicant was paid only $312.00 per week (the equivalent of an hourly wage in the range of $7.00) and further claimed that for the overtime hours that were worked (which were asserted to be far fewer than claimed by the applicant) the applicant was provided with lieu time off.
I found Mr. Sun’s consistent and vigorous assertions about unrecorded hours worked over such a long and now distant period of time to be (although perhaps marginally more reliable than the applicant’s) utterly implausible.
For what may have been their own individual reasons, it appears that both the applicant and the employer were content to have no written traces of their business dealings. All of their transactions were strictly on a cash basis, which led before me to allegations and recriminations about who reported what to Revenue Canada and when, a subject that has little direct relevance to this proceeding.
The fact that I find significant limitations and difficulties in the evidence of both witnesses who testified before me does not relieve me of the obligation to decide this case. I am, however, unable to accept the evidence of either witness in its totality. I am consequently left to determine what is most likely to have occurred in this case. Not without considerable hesitation, I now do so.
First of all, I am satisfied that the applicant worked considerable overtime hours for which he was not properly remunerated. However, I am also satisfied that he has grossly overestimated the number of such hours and I am satisfied that (for the relevant one year period) they are more likely to have been 120 hours than the over 250 claimed.
Similarly, I am persuaded that the applicant’s hourly rate, while greater than that claimed by the employer, was significantly less than the $11.00 claimed by the applicant. I therefore find that that rate was fixed at $9.00 per hour.
For the purposes of this aspect of the case, I accept the applicant’s evidence that he was paid $10.00 per hour for every overtime hour he worked. In view of my finding, he ought to have been paid $13.50 per overtime hour. He is therefore entitled to be paid (the shortfall of) $3.50 for each of the 120 overtime hours worked during the relevant period plus 4% vacation pay generated thereby.
The employer is hereby directed to forthwith pay to the applicant the sum of $436.80.
“Bram Herlich”
for the Board