2712-99-ES 1286839 Ontario Ltd. o/a Innovative Business Centers, Applicant v. Anna McKinnon, Glen Howard, Employment Standards Officer and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 32005741
BEFORE: Anthony Brown, Vice‑Chair.
APPEARANCES: Herb Ostroff for the applicant; Anna McKinnon on her own behalf; L. Eisenberg for the Ministry of Labour.
DECISION OF THE BOARD; July 13, 2000
This is an application under section 68 of the Employment Standards Act (the “Act”) for review of order to Pay No. 48819 issued on October 15, 1999 by Employment Standards Officer Glen Howard.
The application was heard by the Board on June 23, 2000.
Testimony was heard from Anna McKinnon and from Herb Ostroff. The facts are straightforward. The applicant (“the company”) operated a business centre at the Toronto Hilton Hotel which provided business-related services to the hotel’s guests such as typing and photocopying. When a service was performed the guest was to sign a form confirming that the work had been done. The hotel then added the charge to the guest’s bill and collected the payment on behalf of the applicant.
Anna McKinnon (the “claimant”) worked as a Business Attendant for the applicant from December 5, 1997 to January 6, 1999. On or about January 6, 1999, she was temporarily laid off in writing by the applicant because of a down-turn in the applicant’s business. The lay-off was effective immediately. There is some doubt as to whether Ms. McKinnon even got this notice. She claims she only received a voice mail message on January 6, 1999 telling her not to come into work the next day. Ms. McKinnon was not paid termination pay in lieu of notice when the lay-off ceased to be temporary. The company also withheld wages in the amount of $555.00.
The applicant deducted $25.00 from the claimant’s wages because the applicant felt obliged to provide complimentary services to a client when the claimant was late for work and kept the client waiting. The applicant submits that Ms. McKinnon was often late for work. However, it admits that it had no written authorization for this deduction.
The applicant asserts that in January, 1999, the claimant failed to have a client sign a job card for work done by the claimant. Mr. Ostroff testified that the client subsequently refused to pay the invoice for this work in the amount of approximately $600.00. This situation came to light after Ms. McKinnon had been laid off. The applicant asked Ms. McKinnon to contact the client and sort the matter out. Mr. Herb Ostroff testified that he was too busy to do this himself and felt that it was Ms. McKinnon’s responsibility. Ms. McKinnon testified that she refused to contact the client because she no longer worked for the company. The applicant acknowledged that this refusal foreclosed any chance of her being rehired.
Decision
The company laid off the applicant and did not recall her. Under Regulation 327, section 8(4), a lay-off that ceases to be temporary is deemed to be a termination. The applicant was entitled to two weeks’ termination pay.
The applicant had no excuse whatsoever for withholding wages owed to Ms. McKinnon (and admitted at the hearing that these wages should be paid). It also had no authorization to “penalize” Ms. McKinnon by deducting $25.00 in wages for inconveniencing customers due to her lateness.
The applicant had no legal right or authority to refuse to pay the claimant wages or termination pay because she refused to help it sort out an unpaid bill. The applicant could easily have obtained the name of the client’s “contact” person and then have made the contact itself. It was not Ms. McKinnon’s responsibility. If Ms. McKinnon was negligent in not obtaining the client’s signature, immediately after the work was performed, then the applicant’s recourse was through other lawful means, not by violating her statutory rights.
Disposition
The application is dismissed.
The Director of Employment Standards Branch is directed to pay out the money held in trust as follows:
To Anna McKinnon $1726.00
To the Government of Ontario
Consolidated Revenue Fund $172.60
Interest on the above amounts accrued
while held in trust shall be paid to the
recipients pro rata.
“Anthony Brown”
for the Board