Court File and Parties

File No.: 2601-99-ES Employment Practices Branch File No.: 13002784 Date: August 21, 2000 Ontario Labour Relations Board

Applicant: Classic Home Heating and Restorations Responding Parties: Gerald Hooey and Ministry of Labour

Before: John Morgan Lewis, Vice-Chair.

Appearances: J. R. Lafleur and Edna Lafleur for the applicant; Gerald Hooey appearing on his own behalf; Stephen Mason for the Ministry.

Decision of the Board

[1]. This is an application to review Order to Pay No.52660 issued by an Employment Standards Officer pursuant to section 68 of the Employment Standards Act, 1990 R.S.O. 1990, c. E.14, as amended (the "Act").

[2]. There are two matters in dispute between the parties. The claimant asserts that he is entitled to termination pay as he was provided with notice of an indefinite lay-off on or about December 18, 1999, as defined under section 8(3) of Regulation 327 of the Act. The claimant also asserts that he is entitled to twelve hours of overtime pay for the pay period ending December 18, 1999. The responding employer, Classic Home Heating and Restoration ("Classic"), took the position that the claimant was advised of a date of recall when he was laid off and was in fact recalled to work on or around January 18, 1999. With respect to the claim for overtime, Classic maintains that the claimant worked his standard hours of work, that being eighty-four hours, for the period ending December 18, 1999 and that the payment of the additional sixteen hours was simply an advance for the work which the claimant was scheduled to complete in January of 1999. The Employment Standards Officer found in favour of the claimant with respect to both issues and subsequently ordered Classic to pay the amount of $827.28 as well as the administration fee of $100.00.

[3]. The Board heard the testimony of the claimant, Gerald Hooey, and of J. R. Lafleur, the owner of Classic. In making the findings and reaching the conclusions set forth in this decision, the Board has duly considered all of the oral and documentary evidence, the submissions of counsel, and the usual factors germane to assessing evidentiary credibility and reliability, including the firmness and clarity of the witnesses' respective memories, their ability to resist the influence of self-interest when giving their version of events, the internal and external consistency of their evidence, and their demeanor while testifying. The Board has also assessed what is most probable in the circumstances of the case, and considered the inferences which may reasonably be drawn from the totality of the evidence.

[4]. Classic sells and installs fireplaces and furnaces primarily in residential homes but also in commercial buildings. This work includes the installation and, if necessary, the removal of air ducts. Classic also performs general construction work in relation to insurance claims on homes which have been damaged by fire or other causes. This work could entail such wide-ranging tasks such as roofing, drywall, glazing, electrical and plumbing.

[5]. The claimant is a pipe fitter by trade and commenced his employment with Classic on August 10, 1998. The claimant worked exclusively in the installing of furnaces and fireplaces. When first hired, Mr. Lafleur advanced the claimant $800 as he had been unemployed for some time and had moved from Sault Ste. Marie. The claimant paid that money back to Mr. Lafleur during his tenure with the company.

[6]. On December 18, 1998 the claimant was laid off. The claimant had not completed the installation of a furnace for a customer by the name of Larry Moore but was scheduled to finish the work when Mr. Moore returned from a trip over the Christmas holidays. The work was scheduled to be completed on January11th, 1999. That date was moved ahead one week due to a winter storm. The claimant performed minor service work during the Christmas holidays and completed the installation of the furnace on January 18th and 20th, 1999. At around that time, the claimant obtained work with another contractor in the Dryden area. Either immediately or soon thereafter, the claimant ceased working for Classic.

[7]. There was much evidence lead regarding the form of lay-off and whether Classic advised the claimant of a specific date for recall. The Board need not consider this evidence as it is rendered moot in light of the Board's finding with respect to the nature of the claimant's employment.

[8]. Part XIV of the Act pertains to the termination of employment. Section 57 sets out the required notice period for an employee who has been terminated. These provisions, however, do not apply to an employee who is employed in the construction industry. Section 2(e) or Regulation 327 reads as follows:

2. Section 57 does not apply to a person who,

(e) is employed in the construction, alteration, decoration, repair or demolition of buildings, structures, roads, sewers, water or gas mains, pipelines, tunnels, bridges, canals or other works at the site thereof;

[9]. It is the Board's finding that the claimant's employment with Classic falls within the exemption set out in Section 2(e) of Regulation 327 of the Act. Persons employed to carry out such tasks as installing furnaces and fireplaces as well as related duct work are clearly working in the construction industry and are therefore exempt from the termination provisions of the Act by virtue of Section 2(3) of Regulation 327.

[10]. I will now turn to the issue of overtime pay. During the two-week pay period ending December 18, 1998, the claimant was paid for one hundred hours. The claimant testified that he worked one hundred hours and should be entitled to overtime for those hours worked in excess of eighty-eight hours.

[11]. According to Mr. Lafleur, the claimant only worked eighty-four hours during the