1281419 Ontario Limited o/a Denley’s Bar & Grill v. Linda Watters et al, 2000 CanLII 12360

1541-99-ES 1281419 Ontario Limited o/a Denley’s Bar & Grill, Applicant v. Linda Watters et al and Ministry of Labour, Responding Parties.

Employment Practices Branch File No. 42002909

BEFORE: Christopher J. Albertyn, Vice‑Chair.

APPEARANCES: Johnny Zhu and Ping Wu for the applicant; Linda Watters and Lisa Dutrisac for the responding employees; Stephen Mason for the Ministry of Labour.

DECISION OF THE BOARD; March 15, 2000

1This is an employer appeal filed pursuant to section 68 of the Employment Standards Act, R.S.O. 1990, c. E.14, as amended (“the Act”) against Order to Pay No. 42828 issued by an Employment Standards Officer on July 16, 1999.

2The employer operates a bar and grill in Barrie. The employees in respect of whom the Order to Pay was issued were employed as servers and bar staff. The amounts ordered were as follows:

Lisa Dutrisac $361.41

Amy Jensen 69.62

Katherine Morley 296.07

Linda Watters 334.60

3The representatives for the employer who appeared at the hearing brought very few documents to challenge the Order to Pay. They admitted portions of the Order to Pay, and in respect of the parts they disputed, they had little or no documentary evidence to back their challenge. The employer’s representatives are new to this country and they explained that, when they first took over the business, they merely followed the practices of the previous owner as regards the payments made to employees. The claims which are the subject of the Order to Pay arose during that period. Subsequently the employer has obtained proper advice as to its employment obligations.

4I will look at the order made by the Employment Standards Officer in respect of each employee.

Lisa Dutrisac

5Ms. Dutrisac testified and produced a record of all of the times she worked and of the amounts owing to her. Her calculations were disputed, though not seriously challenged by the employer. The principal point of contention between her and the employer concerned whether she was fired, and whether she was entitled to 2 weeks’ termination pay. The evidence clearly established that she was fired and that she had not resigned. Ms. Dutrisac proved that she is entitled to receive payment of the sum $718.92.

Amy Jensen

6The Employment Standards Officer awarded $69.62 to Ms. Jensen. She did not appear at the hearing. The employer produced evidence that Ms. Jensen had put through a credit card charge a second time, which the employer was obliged to refund to the customer. It amounted to $60.66. The employer contends the amount should be refunded. The employer produced a signed authorization by Ms. Jensen that she would refund inventory shortages when working as a server.

7Counsel for the Ministry argued that the letter of authorization signed by Ms. Jensen should not be enforced because it was not specific as to the amount to be refunded. He suggested that general written authorizations are not sufficient for an employer to be able to recover amounts due from employees. He argued that the authorization must relate to a specific debt.

8The relevant provisions in the Act regarding deductions are the following:

Section 8 of the Act:

8. 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 returned to the employer, or accept, directly or indirectly, any wages payable to an employee.

Section 14 of Regulation 325:

14.(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

(c) subject to subsection (2), a written authorization of the employee so permits or directs.

(2) No written authorization of an employee shall entitle an

employer to set off against, deduct from, retain, claim or accept wages for faulty workmanship, or for cash shortages or loss of property of the employer where a person other than the employee has access to the cash or property.

(3) Where an employee has been given or paid a vacation with

pay or payment for vacation in excess of the requirements of Part VIII of the Act, no employer shall set off or deduct such excess against or from any vacation with pay, pay for vacation, or payment under section 30 of the Act.

9I am not persuaded that a general written authorization for the refund of cash shortages is unenforceable. Provided no other person has access to the cash concerned, a general authorization to refund cash shortages is enforceable.

10In this instance the amount wrongfully taken by Ms. Jensen, which the employer had to refund, was directly attributable to her. In the circumstances I find that the employer is entitled to be refunded the amount of $60.66. That amount is to be deducted from the amount which the officer found to be owing to Ms. Jensen. The net amount due to her is $8.96.

Katherine Morley

11Ms. Morley also signed a written authorization. She too put through credit card charges a second time, double charging the customer, which the employer had to refund. The amounts which had to be refunded were $10.95 and $27.80, making a total of $38.75. The Employment Standards Officer awarded her the sum of $296.07. The sum of $38.75 needs to be deducted from that amount, leaving a balance of $257.32. That is the amount owing to Ms. Morley.

Linda Watters

12Ms. Watters testified. There was no dispute concerning her claims. She is entitled to payment of the amount ordered by the Employment Standards Officer.

13In light of the above, the following amounts are due and payable by the employer to the following employees:

Lisa Dutrisac $718.92

Amy Jensen 8.96

Katherine Morley 257.32

Linda Watters 334.60

14The amount held in trust by the Ministry in respect of this matter is insufficient to satisfy the amounts payable by the employer to the employees. The Ministry has in trust the sum of $1,167.87. The total amount owing to the employees is $1,319.80. To this amount must be added the Ministry’s 10% administrative fee of $131.98, making a total of $1,451.78. The shortfall at present is the sum of $283.91.

15The employer is required to make payment of the sum of $283.91 to the Ministry forthwith, so that the Ministry may pay out the amounts due to the employees concerned.

DISPOSITION

16I make the following declarations and orders and I issue the following directions:

1. To the extent the orders made hereunder differ from the Order to Pay issued by the Employment Standards Officer in this matter, her Order to Pay is set aside.

2. The employer is liable to Lisa Dutrisac in the sum of $718.92.

3. The employer is liable to Amy Jensen in the sum of $8.96.

4. The employer is liable to Katherine Morley in the sum of $257.32.

5. The employer is liable to Linda Watters in the sum of $334.60.

6. The employer shall forthwith pay to the Employment Standards Branch of the Ministry of Labour the sum of $283.91.

7. Upon receipt of payment the Ministry may retain its administration fee of $131.98, for payment eventually into the Ontario Consolidated Revenue Fund.

8. Money held in trust and received into trust by the Ministry shall be distributed by the Ministry to the employees in the amounts specified above, less statutory deductions.

“Christopher J. Albertyn”

for the Board