0286-99-ES Stephen L. LaPlante, Applicant v. The Computer Medic and Ministry of Labour, Responding Parties.
BEFORE: Patrick Kelly, Vice-Chair.
APPEARANCES: Stephen LaPlante on his own behalf; no one appeared on behalf of The Computer Medic; Mark Alchuk for the Ministry of Labour
DECISION OF THE BOARD; February 24, 2000
This is an application under the Employment Standards Act, R.S.O. 1990, c.E-14, as amended (the “Act”), for review of a refusal to issue an Order to Pay in respect of a claim for wages, overtime and termination pay.
The Employment Standards Officer (the “officer”) who dealt with the applicant’s original claim determined that paragraph (d) of section 2(1) of Regulation 325, passed pursuant to the Act, disentitled the claimant to any relief under the Act. The provision of Regulation 325 relied upon by the officer reads as follows:
2(1) The Act does not apply to,
(d) an offender who performs work or services under an order or sentence of a court.
The hearing in this matter was scheduled for February 9, 2000, commencing at 9:30 a.m. As the responding party, The Computer Medic, did not appear at that date and time, the Board stood down until 10:00 a.m. in the event the responding party was delayed. The responding party did not appear at 10:15 a.m., and accordingly, after satisfying itself that notice of the hearing had been provided to The Computer Medic, the Board commenced to deal with the matter.
The evidence disclosed that the applicant (“Mr. LaPlante”) was at all material times an inmate of the Frontenac Institution (“Frontenac”) in Kingston, Ontario. Frontenac is a federal minimum security prison.
In August of 1997, Mr. LaPlante became interested in Frontenac’s work release program (the “program”), and was approved to participate in it pursuant to the Federal Corrections Act. It is up to the program participants to find employment, following which the potential employer must enter into an agreement with Frontenac concerning the temporary release of the participant to work. In Mr. LaPlante’s case, he responded to a newspaper advertisement placed by The Computer Medic, a computer repair shop in Kingston, for the position of computer technician. Following several telephone calls and a brief interview with one of The Medic Computer’s principles, Mr. Jamie Clark, Mr. LaPlante was offered the job. Mr. Clark was aware of Mr. LaPlante’s circumstances at the time, and entered into the above-mentioned agreement with Frontenac. It should be noted that Mr. LaPlante’s participation in Frontenac’s program was not pursuant to any court order or sentence. According to Mr. LaPlante, who testified in this proceeding, the agreement included a term requiring Mr. LaPlante to be paid the statutory minimum wage.
Mr. LaPlante commenced employment with The Computer Medic in a junior technician role on October 8, 1997. He was released from Frontenac every morning into the care of Mr. Clark, who also returned Mr. LaPlante to Frontenac each evening. Initially, Mr. LaPlante’s responsibility was chiefly to receive damaged computers from the customer, and repair them. Soon the job evolved, and Mr. LaPlante was conducting service calls and meeting with The Computer Medic’s suppliers. By May of 1998, he was being represented by The Computer Medic as its General Manager. He had some supervisory responsibility for the computer technicians.
At all times up to October of 1998, he was paid $45.00 per day for what was supposed to be a 40-hour work week, or $225.00 per five-day week. In October of 1998, LaPlante received a raise to $300.00 a week (or $60.00 a day). Initially, payment was made by cheque. After a few instances in which the cheques “bounced”, the employees of The Computer Medic, including Mr. LaPlante, demanded their pay in cash. From May of 1998, Mr. LaPlante received his weekly pay in cash. At no time did The Computer Medic make any statutory deductions from Mr. LaPlante’s pay, although it was his subsequent understanding that The Computer Medic was obliged to do so pursuant to the agreement it had with Frontenac.
Mr. LaPlante’s employment was terminated on or around November 7, 1998, when, for no apparent reason, Mr. Clark failed to pick him up at Frontenac. All attempts by Mr. LaPlante to communicate with Mr. Clark from that day forward were fruitless. At no time did The Computer Medic provide Mr. LaPlante with any reason for or notice of termination. Without a job to go to, Mr. LaPlante’s participation in Frontenac’s program was terminated.
Mr. LaPlante claimed that commencing from October of 1997 until his termination, he was paid for a period of 49 weeks at below the minimum hourly rate as established by Regulation 325. He based this claim by calculating his hourly wage at $5.63 and multiplying the difference between $5.63 and $6.85 ($1.22) by 49 weeks at 40 hours each. This should have brought the total to $2391.20, although Mr. LaPlante calculated the amount slightly higher, at $2,401.00. His final weeks of employment, including the last week for which he did not receive wages, were payable at the new rate of $300.00 per week, which when divided by 40 hours yields an hourly rate of $7.50, obviously exceeding the statutory minimum. Finally, Mr. LaPlante claimed two weeks termination pay at $600.00 in total. At the hearing, Mr. LaPlante abandoned any claim for overtime.
The Ministry of Labour, supported by Mr. LaPlante, took the position that the evidence adduced clearly demonstrated that section 2(1) of Regulation 325 had no application to Mr. LaPlante’s claim, and that he was therefore entitled to the coverage of the Act.
The Board is of the view that the evidence supports the position taken by Mr. LaPlante and the Ministry of Labour. Mr. LaPlante’s work assignment had nothing to do with an order or sentence of a court. The authority for Frontenac’s program is contained in a federal statute. The arrangement entered into by Mr. LaPlante and The Computer Medic was clearly an employment relationship. The contract of employment was for work or services performed in Ontario. Thus, pursuant to section 2(2) of the Act, the Act was applicable to the relationship between Mr. LaPlante and The Computer Medic.
Having found that the Act applies, the Board is also of the view that Mr. LaPlante is entitled to wages for the period November 2 to 7, 1998 during which Mr. LaPlante worked at his new weekly pay of $300.00, but for which he was not paid. In addition, Mr. LaPlante is entitled, on the evidence, to termination pay, in light of the fact that he received no notice of termination. In this regard, he is entitled to two weeks pay in the amount of $600.00.
The scope of Mr. LaPlante’s claim for wages falling short of the statutory minimum hourly rate, however, is another matter. Mr. LaPlante first filed his claim on December 29, 1998. The applicable portions of section 82.3 of the Act provide 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.
(2) Despite subsection (1), if a person's entitlement under the Act comes to the knowledge of an employment standards officer when he or she is investigating the complaint of another person, the first person is entitled to recover money that became due to the first person not more than six months before the date on which the second person's complaint is filed.
(4) A person may recover money that became due before the date determined under subsection (1),
(a) if the money became due to the person not more than one year before that date;
(b) if, in the same prosecution or proceeding, the person is entitled to recover money that became due not more than six months before that date; and
(c) if the money referred to in clauses (a) and (b) became due to the person by virtue of the same provision of the Act or the same provision of the contract of employment.
(5) For the purposes of this section, money shall be deemed to have become due on the following date:
In the case of a failure to pay termination pay to the Director under subsection 57 (21), the date on which, had the required payment been made, the employee would have been deemed under clause 57 (21) (b) to have abandoned the right to be recalled.
By virtue of subsection 4 of section 82.3, which covers the present claim in respect of the minimum hourly rate, Mr. LaPlante, is limited to relief for the 12 months preceding the filing of his claim on December 29, 1998 i.e. December 30, 1997. Accordingly, his claim under this head must be limited to 41 weeks (December 31, 1997 to mid-October, 1998). The value of that claim is $2,000.80 (41 weeks x 40 hours x $1.22).
DISPOSITION
The Board makes the following orders:
- The Computer Medic is ordered to pay to Mr. LaPlante:
(i) $2000.80 in respect of wages paid below the minimum hourly rate of $6.85 established by Regulation 325;
(ii) $300.00 in respect of unpaid wages for Mr. LaPlante’s last week of employment preceding his termination of employment;
(iii) $600.00 in respect of termination pay;
(iv) 4 per cent vacation pay on the total amount of $2,900.80 ($116.03);
The Computer Medic is ordered to make all applicable statutory deduction from the monies ordered in paragraph 1 under heading “Disposition” above;
The Computer Medic is ordered to pay to Mr. LaPlante interest on the net amount (following statutory deductions) of monies ordered pursuant to this decision, in accordance with the Courts of Justice Act, from November 7, 1998.
The officer’s determination is set aside.
“Patrick Kelly”
for the Board