Ontario Labour Relations Board
File No.: 3730-98-ES Jeff Galpin, Applicant v. Techni-Seal Inc. and Ministry of Labour, Responding Parties.
BEFORE: Laura Trachuck, Vice-Chair.
APPEARANCES: Jeff Galpin on his own behalf; S. Cumming and Andre Belaire for Techni Seal Inc.; L. Eisenberg for the Ministry of Labour.
DECISION OF THE BOARD; March 9, 2000
Decision
This is an application under section 68 of the Employment Standards Act (the “Act”) appealing a decision of an Employment Standards Officer not to issue an Order to Pay.
At the commencement of the hearing the representative of the Ministry of Labour indicated that the Ministry would not participate in the hearing and withdrew.
The relevant facts are as follows. The applicant was hired as a sales representative with the responding party Techni-Seal Inc. (referred to as the “company”) on March 18, 1996. He resigned in July 1997. The title of his position was Key Account Executive. His job was to sell products such as aluminum siding, concrete sealant and driveway sealant to the construction industry and construction retailers. At the time he was hired, the parties contracted for a salary and commission structure (plus car and expenses). Mr. Galpin was to receive a $33,000.00 salary plus commissions on new business he brought in. The commission was calculated on a sliding scale and was payable after the end of the fiscal year, October 31. The parties agreed to a commission structure applicable to new sales because there was already a sales representative in the Ontario area. It was intended that the applicant would replace the Ontario sales representative but until that occurred he, not the applicant, would be entitled to the commissions on the existing accounts.
The applicant received $2,552.89 in commission for 1996 sometime after October 31, 1996. No issue was raised with respect to that amount. The dispute between the parties is with respect to the commission payable the next year. The applicant claims that he was entitled to receive commissions in accordance with the previously agreed sliding scale on all sales he made after October 31, 1996. The company responds, however, that he was advised in the early spring of 1997 of a new commission structure under which commission would be payable after a sales plateau had been reached. André Belair, the applicant’s manager, testified for the company that the new structure was presented to the applicant in a meeting over lunch in the early spring of 1997. He also testified that he showed the applicant a document in which the commission structure was set out. The same commission structure was applied to all of the sales people. However, the document was written in French which the applicant does not speak or read.
Mr. Belair testified that the applicant complained that he did not understand the document and that he was told that he would receive another document in English. Mr. Belair also testified that the sales people normally receive a contract each year which sets out the commission structure. However, no new contract had been given to Mr. Galpin by the time he left in July.
Mr. Galpin denies that he was presented with a new commission structure at any lunch meeting with Mr. Bellair. He testified that he asked for a document outlining the commission structure on a number of occasions and that he was only given the French document on the day he quit.
Mr. Galpin quit his employment in July, 1997. At that point he had reached sales of $324,785.58 and he claims he is entitled to commission on those sales on the same terms as applied to new sales the year before. He originally claimed that he was entitled to receive commissions on the full amount of sales at the highest rate of the previous sliding scale but he acknowledged at the hearing that that calculation was not correct if the sliding scale applied. He relies upon notes he took at his first meeting with Mr. Belair in which he claims they discussed how he could achieve $60,000 per annum with a base salary of $33,000.00.
The company denies that he was entitled to any commission as he had not reached the sales plateau set for the year. However, it paid him $394.01 in January, 1998 for the nuisance value of the claim. The company argues that the commission structure originally presented to Mr. Galpin was for the first year only, as it applied to new sales. The company claims that when Mr. Galpin became responsible for all of the Ontario sales in the second year, the contract was changed according to the structure set out in the French document which Mr. Galpin had been shown. Pursuant to that structure he was not entitled to any payment as the sales plateau had not been reached when he quit.
Decision
The Board finds that the parties intended to negotiate new contractual terms to reflect that Mr. Galpin was to receive commissions on both existing and new business after the fiscal year ending October 1996. However, they never completed the renegotiations. Even on Mr. Belair’s evidence, the most he did was show Mr. Galpin a document which he could not read. He did not provide him with a copy in English as he said he would. The company did not provide him with a new contract even though that was its practice according to Mr. Bellair. Nevertheless, both parties knew that the terms of the previous contract were only to apply for the first year. Mr. Galpin testified that he kept asking for a document outlining the new structure.
However, the Board does not have to determine what rate of commission Mr. Galpin was working under at the time he quit because commissions were not payable until the end of the fiscal year under any version of the contract between the parties. That was the term of Mr. Galpin’s contract for 1996 and also part of the commission structure proposed by the company in 1997. As Mr. Galpin quit before the end of the fiscal year he was not entitled to claim commissions.
Disposition
- For the above reasons this application is dismissed.
“Laura Trachuk”
for the Board