2081-98-ES Chris Kabala, Applicant v. OKJ Insurance Brokers Ltd. and Ministry of Labour, Responding Parties.
BEFORE: Anthony Brown, Vice-Chair.
APPEARANCES: Chris Kabala on his own behalf; Brian Fujioka for OKJ Insurance Brokers Ltd. and Frank Camilleri for the Ministry of Labour.
DECISION OF THE BOARD; January 14, 2000
This is an application pursuant to the Employment Standards Act (“the Act”) for review of a refusal of an Employment Standards Officer to make an order to pay. The applicant seeks an order that the responding party pay him for overtime.
A hearing was held on December 16, 1999.
The applicant, Mr. Kabala, testified that he was employed by the responding party (referred to as “the company”) from May,1996 to December, 1997. He was employed as a customer service representative, serving insurance clients by processing policies and handling inquiries. He was a salaried employee. His normal work day was 7 and a half hours, between 9 a.m. to 4:30 p.m. He claims that because of excessive workload he came into work at 8:00 a.m. and left at 5:00 p.m. and he claims to have worked on some Saturdays.
Mr. Kabala testified that in total he worked approximately 70 hours of overtime. At his salary of $14.50 per hour, this claim amounts to $1,015.00. Mr. Kabala produced no records to show when, or over what period of time, the overtime hours were worked. Mr. Kabala did produce a photocopy of a wall calendar on which he had noted the overtime hours that he claims to have worked during a five week period during May and June, 1997 while another employee was on vacation. The alleged overtime during this period five week period is 22 hours and the maximum overtime alleged in respect of any one week is six hours.
Mr. Kabala states that the company was aware that he was working overtime. He did not identify any person employed by the company who authorized overtime or gave him the impression that he would be paid for overtime.
Mr. Fujioka testified for the company, which carries on business as an insurance broker. He is one of two principals of the company. At the material time, the company had four employees: two customer service representatives, one clerk and one receptionist. He testified that Mr. Kabala did not seek the company’s permission to work overtime and was not asked to do so.
Regular work hours for the company’s employees are 9:00 a.m. to 4:30 p.m., as set out in a “Staff Memo” given to employees dated January 1, 1996, filed with the Board in evidence. This memo was provided to Mr. Kabala when he was hired. The memorandum makes no mention of overtime and Mr. Fujioka stated that the company does not have the practice of asking its employees to work overtime. The company’s computer system is shut down every day between 4:15 and 4:30 p.m. for back-up purposes. Mr. Kabala had no access to the computer when it was shut down. Most of Mr. Kabala’s work was done on the computer. Mr. Fujioka further stated that, because the office is secured, Mr. Kabala would not have been able to enter the office on weekends or before 7:00 a.m. on work days.
Mr. Fujioka stated that all of the other employees of the company, including Mr. Kabala, were expected to cover for the absent employee during her absence on vacation in May and June, 1997. He explained that the absent employee had prepared her files so as to minimize the work that had to be done in her absence. He stated that Mr. Kabala did not inform him that he was over-burdened with work during this period. He stated Mr. Kabala would have been stopped from working overtime if the company were aware that he was doing so. He testified that only “claim” reports from clients are treated as being urgent. The rest of the work in the office is not of an urgent nature and there is, therefore, no need to require employees to work overtime. Mr. Fujioka testified that during the period of Mr. Kabala’s employment the company was not particularly busy, although it did experience peaks in activity from time to time. He stated that in the year Mr. Kabala was dismissed, the company lost $500,000 in business.
Mr. Fujioka filed with the Board a copy of a memorandum given to Mr. Kabala prior to his first day of work. It notes his position, his starting salary, the company’s standard 3-month probationary period and the “annual review” each January. This memorandum, dated April 29, 1996, makes no mention of hours of work or overtime.
Mr. Fujioka testified that he met with Mr. Kabala on the last Thursday in October, 1997 and advised him that the quality of his work was inadequate and that he would be given one month to improve. Mr. Kabala failed to improve and was terminated in December,1997.
Decision
For the reasons which follow, the Board has decided that the application should be dismissed.
Mr. Kabala was unable to provide anything to corroborate his claim for overtime. He provided no evidence that the company was aware that he was working overtime or that he had permission to do so. It is entirely possible that Mr. Kabala occasionally came to work early and left late. It appears that he was having difficulty with the job and may have felt it necessary to put in some extra time. However, there is no evidence before the Board that he worked in excess of forty-four hours in any week, so as to obligate the employer to pay overtime under section 24 of the Act. His ability to work outside normal working hours was severely constrained because he had no access to the computer. In the Board’s view, the copies of two pages from the 1997 calendar submitted by the applicant do not constitute a reliable record of overtime. Even if they were reliable, they do not support Mr. Kabala’s claim under the Act. Mr. Kabala claims that he worked 22 hours of overtime during the five weeks when another employee was on vacation. The most overtime claimed for any one week is six hours. His regular work week was 37½ hours. Therefore, the alleged hours worked did not exceed 44 hours per week for any week during this period.
DISPOSITION
- The application is dismissed.
“Anthony Brown”
for the Board