1039-99-ES Ubavka Doslo, Applicant v. VISL Ontario Inc. and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 30 012883
APPEARANCES: Ubavka Doslo and Jordan Doslo appeared on behalf of the applicant; William Mears appeared on behalf of VISL Ontario Inc.; Karima Chatur appeared on behalf of the Ministry of Labour.
BEFORE: Marilyn Silverman, Vice‑Chair.
DECISION OF THE BOARD; June 22, 2000
1This is an employee appeal of a decision of an Employment Standards Officer’s refusal to issue an Order to Pay the applicant wages (in the form of a bonus payment), termination pay, overtime and vacation pay on the latter two amounts.
2The Employment Standards Officer determined that the claim had been filed outside of the six month time limit found in section 82.3(1) of the Employment Standards Act (‘the Act’). That section 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.
3The applicant’s ( Ms. Doslo) last day of work was August 10, 1998. The date of her claim according to the claim form filed with the Ministry was February 15, 1999. On that basis the claim is untimely. However, Ms. Doslo asserts that she filed the claim on October 29, 1998 which would be within the six month time frame. She contends that the reason she filed again in February 1999 was that the first claim form had been lost and this was really a duplicate form.
4After hearing this evidence, the representative for the Ministry contacted her office and confirmed that the computer information supported Ms. Doslo’s position that the claim was filed on October 29,1998. The employer had never received the claim in any event as its address was incorrect on all forms.
5Having regard to the above, I determined that the claim had in fact been made in a timely fashion and that this matter could be heard on the merits.
6Ms. Doslo gave evidence. She worked for the responding party (the “employer”), as an operator in their call centre. She was employed from August 29, 1997 to August 10, 1998. She worked in a variety of foreign languages as part of her job duties. She claims that she was not properly paid overtime pay for the period of her employment. She presented her pay stubs for each week of work from October 29, 1997 (one year back from the date of her claim) to August 10, 1998 (her last day of work) and calculated the amount of time she worked in excess of 44 hours in a week. That amount was $3,569.80 inclusive of 4% vacation pay on these overtime amounts.
7Ms. Doslo then dealt with the issue of a bonus payment she claims is due. She presented a pay stub which referred to $200.00 bonus payment. That stub also contained a $200. 00 deduction from pay as an advance repayment. Ms. Doslo states that she never took an advance and that she is entitled to the bonus for the period February 16 to March 1, 1998.
8The final issue is that of termination pay. Ms. Doslo contends that she was terminated from her employment and that she is entitled to one week’s pay in lieu of notice. That amount is $457.60 inclusive of 4% vacation pay. She claims that she had a verbal altercation with another employee and left the premises. She said there were no witnesses to the altercation. She said someone from the employer called her later and told her not to come in to work. According to Ms. Doslo, no reason was given.
9Mr. William Mears testified on behalf of the employer. With respect to overtime payments, he states that the different languages that an employee works in are different profit centres and overtime pay is calculated on a separate basis for each profit centre. Therefore if Ms. Doslo’s total hours were over 44 hours in a week but divided between two or three languages they would be tabulated for overtime purposes as less than 44 hours per week. Mr. Mears also submitted that Ms. Doslo never raised this issue with the employer during her employment.
10On the issue of the $200.00 bonus, Mr. Mears stated that he instituted the bonus program to be based on the company’s profitability on a monthly basis. All employees received a bonus for one month and did not receive another one as the company had not been profitable since. He claims that Ms. Doslo received her bonus like everyone else and is not entitled to more. He cannot explain the $200.00 deduction on the pay stub.
11The Ministry of Labour asserts that the $200.00 reference appears to be an unauthorized deduction from wages.
12On the issue of the termination, Mr. Mears gave evidence that he was contacted by telephone by one of his supervisors, Ms. Sally Doanne, and was told there was a physical altercation and that Ms. Doslo was at fault. He said that the police were called but he was not in attendance. He did not personally witness the altercation, he did not speak to any of the alleged participants and he basically relied on the version of events that his supervisor recounted. He dealt with the matter through another supervisor and on the telephone. His opinion of the events in question were based upon what the supervisor told him. That supervisor did not attend the hearing.
13Mr. Mears then advised the supervisor to tell Ms. Doslo that she could not return to work as her conduct had endangered the safety of others. He then gave evidence of a telephone call that he had with Ms. Doslo where she asked if she could return to work and he refused.
DECISION
14I find based on the evidence presented (both documentary and viva voce) that Ms. Doslo is entitled to overtime pay and termination pay and 4% representing vacation pay on each of these amounts. She is further entitled to her $200. 00 bonus on a one time basis as there appears from the documents to have been an unauthorized deduction from her wages in that amount. She is not entitled to any additional bonus amounts as I find from the evidence that the bonus was discretionary and the employer was entitled not to pay any amounts after the one time bonus.
15In respect of the overtime pay amounts, the applicant’s right to these payments was not hotly disputed by the employer. An employer’s method of accounting and the systems it utilizes cannot deprive an employee of her statutory entitlement to payments.
16In respect of the termination pay, there was no direct evidence from the employer. The onus is on an employer who alleges termination from employment on the basis of wilful misconduct. As the representative for the Minstry of Labour submits, there was no direct evidence to support the employer’s position on the termination issue. The only evidence put forth by the employer was hearsay evidence. Mr. Mears, who attended for the employer, was not on the premises during the altercation, did not speak to the individuals involved or to witnesses, if any. I am therefore not prepared to accept that the employer met the onus to prove wilful misconduct. I find therefore that Ms. Doslo is entitled to termination pay.
DISPOSITION
17The application for review is allowed.
18I order that the amount of $4,227.40 be paid by the responding employer to the applicant.
“Marilyn Silverman”
for the Board