4269-98-ES 459239 Ontario Limited o/a Niagara Shoe, Applicant v. Janine Crawford and Ministry of Labour, Responding Party.

BEFORE: Anthony Brown, Vice-Chair.

APPEARANCES: Mike Klemm for the applicant; Janine Crawford on her own behalf and Frank Camilleri for the Ministry of Labour.

DECISION OF THE BOARD; February 11, 2000

1. This is an application for review of an order to pay (No.52173) made by an Employment Standards Officer pursuant to the Employment Standards Act. The amount of the order to pay insofar as it relates to Janine Crawford is $1,090.96, representing $640.00 for two weeks’ termination pay, $409.00 for wages owed and $41.96 for vacation pay.

2. A hearing was held on December 17, 1999.

3. This application concerns the issue of whether or not the applicant (“Niagara Shoes”) should be required to pay wages to the responding party, Janine Crawford, for certain public holidays. It also concerns the issue of whether or not the applicant must pay termination pay in lieu of notice to Ms. Crawford.

4. The six public holidays at issue occurred during the company’s pay periods ending July 10, 1997, December 25, 1997, January 9, 1998, April 16, 1998 and May 28, 1998.

5. Mr. Mike Klemm testified for the applicant. He is a manager of Niagara Shoes, which manufactures shoes and accessories, Ms. Crawford was a sewer for the company. Mr. Klemm stated that during 1997 and 1998, the company frequently laid off employees because of the seasonal nature of its work. He stated that Ms. Crawford was not paid for the public holidays in question because she was on lay-off at the relevant time. He states that Ms. Crawford was laid off on December 19, 1997, prior to the 1997-98 Christmas period, and was rehired on March 2, 1998. He states that Ms. Crawford was also laid off between May 1 and May 11, 1998. Mr. Klemm did not provide evidence that Ms. Crawford was laid off during the pay periods ending July 10, 1997, April 16, 1998 and May 28, 1998.

6. Mr. Klemm testified that Ms. Crawford was not fired from her job, but was laid off on June 17, 1998 and has chosen not to return to work.

7. Janine Crawford testified. She stated that the company has a practice of laying off its staff just prior to public holidays in an attempt to avoid paying wages for those days. She stated that she did not work on the public holidays in issue because she was temporarily laid off during the relevant periods of time.

8. Ms. Crawford testified that Niagara Shoes terminated her employment on June 17, 1998. She stated that the plant foreperson (“Irene”) told her that she was fired for not tying up her hair, contrary to safety rules. She produced a copy of a letter to her from Niagara Shoes (over the name of Renate Klemm), dated June 16, 1998 giving her a second warning about not tying up her hair. However, she claims the real reason for her termination was that she had raised concerns at the plant about the employer’s alleged practice of frequent lay-offs and encouraging employees to “bank” hours for employment insurance purposes.

Submissions

9. Mr. Klemm submits that the applicant is not required to pay for the public holidays because Ms. Crawford did not work on the day preceding or following the holidays. He submits that Ms. Crawford was not terminated from employment. Ms. Crawford submits that she was fired. She submits that the Employment Standards Act does not exempt Niagara Shoes from the obligation to pay for the public holidays.

Decision

10. Section 25 of the Act provides that an employee shall be paid for public holidays unless the employer is excused from this requirement by other provisions in section 25. Subsection 25(1) states:

11. (1) This section does not apply to an employee who,

(a) is employed for less than three months;

(b) has not earned wages on at least twelve days during the four work weeks immediately preceding a public holiday;

(c) fails to work his or her scheduled regular day of work preceding or his or her scheduled regular day of work following a public holiday;

(d) has agreed to work on a public holiday and who, without reasonable cause, fails to report for and perform the work; or

(e) is employed under an arrangement whereby the employee may elect to work or not when requested so to do.

11. Ms. Crawford does not come within any of the exceptions listed in subsection 25(1). Ms. Crawford was employed by the applicant between August, 1996 and June 17, 1998. The Board is satisfied that, during this period, Ms. Crawford was temporarily laid off for periods of time that included public holidays. Therefore she could not have worked on the day preceding or following the public holidays under dispute. There is no evidence before the Board to show that any of the other exceptions in subsection 25(1) apply to Ms. Crawford. Ms. Crawford is entitled to be paid for the public holidays in question.

12. The Board is also satisfied that Ms. Crawford’s employment was terminated on June 17, 1998. I accept her version of what happened as more credible than that of Mr. Klemm. Mr. Klemm was not present during the events leading up to the termination and could offer no personal knowledge of what happened, and no corroboration for his statement that Ms. Crawford was merely laid off. The Board is satisfied on a balance of probabilities that Ms. Crawford was fired either because she failed to tie up her hair or because she questioned the company’s alleged practice of encouraging employees to “bank” hours for employment insurance purposes. The Board further notes that if Ms. Crawford were in fact laid off indefinitely, the lay-off would be a deemed termination by virtue of subsection 8(3) of Regulation 327.

Disposition

13. The application is dismissed.

14. The Director shall make the following disbursements from the money held in trust:

To the employee $1,090.96

To the Government of Ontario

Consolidated Revenue Fund $109.09

interest earned on the moneys held in trust in

this matter is to be paid to the above parties in

proportion to the amounts paid out.

15. The Order to Pay did not include the deduction of $25.00 which Ms. Crawford alleged at the hearing to have been unlawful. As Ms. Crawford did not seek a review of the Order to Pay in this respect, the Board has no jurisdiction to deal with this item.

16. The Board notes that Order to Pay No.52173 appears also to pertain to a Lori Boyco, in respect of whom Niagara Shoes was ordered to pay $332.80 for unpaid public holidays. It is not clear whether the Director of Employment Standards Branch holds money in trust for Ms. Boyco. Niagara Shoes did not appeal the Order to Pay in respect of Ms. Boyco. The Board’s decision in File No. 4269-98-ES does not pertain to Ms. Boyco.

“Anthony Brown”

for the Board