Thrifty Travel Counsellors Ltd. v. Dan McMahon and Ministry of Labour
File No.: 3045-98-ES Employment Practices Branch File No.: 11000496 Date: May 25, 2000
Before: Brian McLean, Vice-Chair.
Appearances: Jack Braithwaite and Ray Helsberg for the applicant; Dan McMahon on his own behalf; Heidi Ann Lazar-Meyn for the Ministry of Labour.
DECISION OF THE BOARD
1This is an employer review of an Order to Pay issued by an Employment Standards Officer. The Officer ordered the employer to pay minimum wages, vacation pay, holiday pay, unpaid wages and overtime pay to the employee.
2A hearing commenced in this matter on February 10, 2000 in Sudbury. During the course of the hearing, it became apparent that this matter might be resolved, in whole or in part, depending on the Board’s answer to one of the legal issues presented in this case. The legal issue identified by the parties is what meaning is to be given to the term “a person employed as a taxi cab driver” which is present in a number of places under the Regulations made under the Act. Accordingly, the hearing was adjourned on the parties’ consent, to permit the filing of written submissions. Those submissions have now been received.
The Background Facts
3The employer is in the business of transporting persons from Sudbury and its outlying communities to Lester Pearson International Airport in Toronto. The employer operates two types of vans to transport customers to and from the airport. Five of the employer’s fleet are small vehicles with seven seats or fewer and two are 15-passenger vans. The claimant was formerly employed by the company as, among other things, a van driver. The claimant drove all of the employer’s vehicles and may have driven a different vehicle from one day to the next. The employer directed him to drive a vehicle of a particular size depending on how many passengers were to be taken from Sudbury to the airport and back on the day in question.
4The Order to Pay was issued by the Employment Standards Officer on the basis that Mr. McMahon was not a taxi driver. As a result of the Officer’s determination, Mr. McMahon was entitled to all of the benefits under the Employment Standards Act that most employees receive. However, if, as the employer asserts, he was employed as a taxi cab driver, under Regulation 325 to the Act, he is not entitled to Overtime Pay and paid Public Holidays. The Regulation defines “taxi cab” as follows:
“taxi cab” means a vehicle, with seating accommodation for not more than nine persons exclusive of the driver, used for the carriage for hire of persons”.
Argument
5The Ministry’s position is that an employee is employed as a taxi cab driver if that employee spends the majority of his/her time driving vehicles that carry nine passengers or less exclusive of the driver. The Ministry asserts that a majoritarian test provides clear guidance to employees and employers about employer’s rights to overtime and public holiday pay. Further, it avoids the “onerous record-keeping and potential for disagreement” that would result if an employee were to receive overtime pay and public holiday pay based on the percentage of time he or she is a taxi cab driver.
6The Ministry relies on Alston Cartage Ltd., E.S. Decision Number 96-91, April 12, 1996, where the Employment Standards referee had to determine whether a truck driver was a highway transport employee or a local cartage employee (each of which are entitled to overtime pay at a different threshold) in circumstances where the employee did some of each kind of work. The referee applied the appropriate overtime standard based on which activity the employee spent the majority of his working time.
7The employer takes the position that it is a “business that falls within the definition of taxi cabs” as defined in Regulation 325, and accordingly, any employee who drives a taxi cab is a taxi cab driver. It also adopts the position of the Ministry that employees who spend the majority of their time driving taxi cabs are exempt. The employer relied on a decision of an adjudicator appointed under the British Columbia Employment Standards Act. However, while the facts of the case are similar to the ones before me, the term “taxi cab” in the British Columbia Employment Standards Act is not defined and so the reasoning in that case is of limited assistance.
8While the claimant filed no written submissions, at the hearing he took the position that he was not a taxi cab driver as he did none of the things (i.e. cruising the streets in search of fares) that a taxi driver does. He also relied on the fact that the employer does not hold any taxi cab licence for the City of Sudbury.
Decision
9Under the Act, most employees are entitled to be paid overtime after 44 hours worked in a week. Most employees are also entitled to be paid for public holidays.
However, certain employees, as established by the Regulation, are not entitled to overtime pay or paid holidays at all. Included among those employees are persons employed as taxi cab drivers as that term is defined by the Regulations.
10I first consider Mr. McMahon’s position that he is not a taxi cab driver because his work is not of the same character as a taxi cab driver and he does not hold a taxi cab driver’s licence. I have sympathy with Mr. McMahon’s position, but am unable to accept it. Mr. McMahon’s argument is the kind of common-sense approach the Board would use to determine this issue were there not a definition of “taxi cab” in the Regulations. However, as “taxi cab” is defined, I am obligated to apply that definition in considering this appeal.
11It is clear that there are several possible alternatives that the Board might apply to determine this issue. It might be argued that if an employee ever drives a taxi cab, then s/he is “employed as a taxi cab driver”. It might also be argued that an employee is entitled to accumulate hours for the culmination of overtime on any day he works as a non taxi cab driver. Finally, it might well be said that an employee should only lose overtime and holiday pay entitlement if the vast bulk of her time is spent driving a taxi cab, as the Board should construe exceptions to employment standards narrowly.
12However, I am persuaded that the correct approach is the one advanced by the Ministry. In my view, the words “employed as a taxi cab driver” require more than that the employee occasionally drives a vehicle defined in the Regulation as a taxi cab. The employee must spend the predominant or majority of her work hours driving a taxi cab, as defined by the Regulations, to be considered someone who is employed as a taxi cab driver.
13I am also satisfied that since overtime is calculated on a weekly basis, the appropriate period to determine whether an employee is employed as a taxi cab driver and therefore entitled to overtime pay and holiday pay is weekly. Accordingly, I determine that Mr. McMahon was not employed as a taxi cab driver for any week in which 50% or more of his hours worked were spent driving a vehicle with seats for more than nine passengers. In those weeks Mr. McMahon was entitled to overtime pay and, if the holiday fell within that week, public holiday pay.
14The matter is referred to the Registrar to be rescheduled for hearing. The Board encourages the parties to attempt to resolve the issues which remain in dispute, and directs that Labour Relations Officer James Bowman contact the parties to facilitate these discussions.
15I am seized.
“Brian McLean”
for the Board