Telehop Communications Inc. v. Louisy, 2000 CanLII 13213

Telehop Communications Inc., Card Tel. Corp. v. Lois Louisy and Ministry of Labour

Employment Practices Branch File No. 34001976

BEFORE: Anthony Brown, Vice-Chair.

APPEARANCES: Hershel Spiegelman for the applicants; Lois Louisy on her own behalf; Frank Camilleri for the Ministry of Labour.

DECISION OF THE BOARD; July 4, 2000

1This is an application for review pursuant to the Employment Standards Act in respect of an order to pay (Order No. 48888) made by an Employment Standards Officer. The applicant was ordered to pay the responding party Lois Louisy an amount representing unpaid overtime, one week’s pay in lieu of notice of termination, plus vacation pay.

2A hearing was held on May 26, 2000.

3The applicant requested that the style of cause be changed to indicate Card Tel. Corp. as the “applicant”, rather than Telehop Communications Inc. The applicant’s representative, Mr. Hershel Spiegelman, stated that Card Tel. Corp. is a subsidiary of a holding company Telehop Communications Inc. and was the actual employer of Lois Louisy. The Board notes that the money paid into trust with the Director of the Employment Standards Branch was paid by a third entity: Telehop – Long Distance Service Limited. The Order to Pay was issued against both Card Tel. Corp. and Telehop Communications Inc. and, in the Board’s view, although Card Tel. Corp should be added as an applicant, there is no reason to delete Telehop Communications Inc. from the style of cause.

4In this application the issues are whether or not Lois Louisy worked “overtime” so as to give rise to an entitlement to overtime pay, and secondly, whether Lois Louisy is entitled to one week’s pay in lieu of notice of termination.

The Facts

5Hershel Spiegelman is the chief executive officer of Telehop Communications Inc. and the president of Card Tel. Corp. He testified that in July, 1999, Card Tel. Corp. was moving its customer service division to Newmarket, Ontario from Toronto. It decided to lay off its customer service employees. He stated that Lois Louisy was given one week’s notice of termination on June 24, 1999, to be effective on July 2, 1999. Mr. Spiegelman filed a copy of a memorandum dated June 23, 1999 to “all customer service staff” advising them that they were to be laid off as of July 2, 1999. He also filed a copy of a memo from Jocelyn Anning, the office manager of Card Tel. Corp to himself, dated June 23, 1999 confirming that Lois Louisy and two other employees were given the aforementioned notice on June 24, 1999. He stated that he was not present when the notice was given and has no personal knowledge that the notice of termination was delivered to Ms. Louisy or as to what conversation may have occurred between Ms. Anning and Ms. Louisy at the time.

6Ms. Louisy worked on June 25, 1999 but did not return to work the following week or thereafter. On Monday, June 28, 1999, she called in “sick”. Mr. Speigelman stated that he called her at home on Monday and left a message to return his call. He stated that he wanted to let her know that the security codes had been changed and that she would not be able to get into the office before normal working hours. He stated that when Ms. Louisy was given her notice of termination, the company changed the codes on her “security pass” to confine her access to the hours of nine to five because she had the habit of coming in early and he did not want her at the workplace outside normal working hours. The company has a large and expensive database and did not feel comfortable permitting her access to it after hours, following her notice of termination.

7Mr. Spiegelman stated that he left messages on Ms. Louisy’s telephone on two occasions on Tuesday, June 29, 1999. She did not return any of his calls. He stated that it came to his attention that Ms. Louisy was not at home because she was out at job interviews. He regarded her as having abandoned her job and therefore refused to provide her with pay for her last week of work.

8Mr. Spiegelman stated that Ms. Louisy was absent from work two hours per week for 10-12 weeks for piano lessons. He admitted that he does not know if Ms. Louisy worked through lunch in order to take this time off.

9Mr. Spiegelman denied that the company ever authorized Ms. Louisy to work overtime or ever promised to pay her for overtime. He stated that she came to work early and worked late because this schedule coincided with her ride to and from work. He stated that he asked Ms. Louisy to go home when she worked late but that she refused to do so. He stated that he was unaware of what she was doing before or after normal working hours. He said there was always work to do but no work that had to be done (i.e. that could not wait until the next day).

10Lois Louisy testified that she started work with the company in December, 1998. She was initially hired as an office manager, on salary. She stated that when she was hired she was told to log her overtime hours and that she would be paid when the employer was more established and could afford it. She stated that she often came into work before 9:00 a.m. and left at 9:00 or 10:00 pm. She stated that she worked on some weekends. She stated that she was never told not to work late. She stated that when Mr. Spiegelman and Ms. Anning were transferred into the office, she lost her position as office manager. She explained that her work during regular business hours was very time-consuming. She was required to put together sales kits for sales representatives. She spent considerable time dealing with customer complaints. The telephone cards sold by the company were not working properly and it took a long time to sort out each customer’s problems. She stated that Mr. Spiegelman also worked late and was aware that she was working late. She stated that she used the hours outside the normal workday to catch up on work.

11Ms. Louisy stated she had heard rumours of troubles at the company and that it might be closing down. On Thursday, June 24, 1999, she went to see Ms. Anning. and was told by Ms. Anning that the company would “let the girls go.” Ms. Louisy states that, at this point, Ms. Anning said to her “we don’t know what we’ll do with you.” and Ms. Louisy responded “I guess you’ll have to lay me off”, or words to that effect. She states that she was not offered a job at the Newmarket location. Ms. Louisy stated that this conversation left her uncertain of her employment status, i.e. whether she had been laid off. However, she states that Ms. Anning had told her that the company did not intend to pay her for overtime. Ms. Louisy worked the following day. She stated that another employee (“Cathy”) told her that the company would call police if she showed up for work. She admitted that she did not attempt to verify this information with any manager at the company. She also stated that a fellow employee “Hilary” informed her on Friday, June 25, 1999 that the codes on her security “pass” had been changed. She stated that she called the applicant’s alarm company to confirm this. She also candidly admitted that, although she called in “sick” on June 28, 1999, she was not in fact ill. She admitted that on that date she went to the Ministry of Labour to ascertain her rights under the circumstances, and that she looked for a new job later that week. She states that she routinely recorded her hours worked in her day-timer. At the fact finding meeting with the Employment Standards Officer, she collated her hours into a chart that was used by the officer to calculate the overtime. She confirmed that she did work those hours.

Decision

12The Board has decided that Lois Louisy is not entitled to termination pay in lieu of notice. Lois Louisy admitted that she improperly called in “sick” on June 28,1999 and spent time later that week job hunting. It is unclear on the evidence whether she ever received written notice of termination. She may have been confused about her employment status as a result of her conversation with Ms. Anning. However, her effort to call in sick indicates that she was aware that she was expected at work the following week.

13The Board concludes that Lois Louisy was aware that she had been laid off with a week’s notice. If she had been genuinely confused about her status (given that she claims she received no notice of termination), she had only to call her supervisor to discuss the matter and to ask whether the police would be called if she showed up for work. Instead, she wilfully neglected to work during her final week of work (June 28 to July 2, 1999), and she is not entitled to be paid for that week. Subsection 11(2) of Regulation 327 made under the Act states:

(2) Where, during the period of notice of termination, the person who has been given that notice is guilty of wilful misconduct or disobedience or wilful neglect of duty that has not been condoned by the employer, section 57 of the Act and this Regulation does not apply.

14I now turn to the issue of “overtime”. The applicant employer produced no payroll records relating to Ms. Louisy. Mr. Spiegelman denies any agreement to pay overtime but does not, however, deny that Ms. Louisy did stay at work beyond regular hours.

15There does not appear to be any doubt that Ms. Louisy spent extended hours at the office, before and after the regular day. It is irrelevant that she may have done so because of her transportation arrangements between work and home. The Board is satisfied that she used these extended hours to work, rather than to engage in personal pursuits. In fact, Mr. Spiegelman did not go so far as to allege that she was idle during this time. Ms. Louisy, whose testimony I found to be entirely credible, went to some lengths to explain her job responsibilities. Most importantly, because regular hours were often spent on the phone with customers, her other responsibilities had to be completed during off-hours. It is readily apparent that the applicant company did nothing to stop her from working long hours because it was deriving a significant benefit from her dedication to her work. If Mr. Spiegelman told her to “go home”, he took no reasonable steps to enforce this direction. It would not have been difficult to control her access to the office. That is exactly what the company did effective June 28, 1999.

16The company produced no witnesses or records of its own at the hearing to refute Ms. Louisy’s detailed information about her overtime. Having carefully weighed the evidence, the Board finds that the company knew Lois Louisy was working overtime and is obligated to pay her claim for overtime under the Act as calculated by the Employment Standards Officer.

Disposition

17Card Tel. Corp. is hereby added as an applicant.

18The order of the Employment Standards Officer is amended to deny Lois Louisy’s claim for one week’s termination pay (plus vacation pay thereon).

19The order of the Employment Standards Officer is affirmed with respect to the claim for “overtime” (plus 4% vacation pay).

20The Director of Employment Standards is directed to disburse the money held in trust as follows:

To Lois Louisy $728.85 plus $29.15 vacation pay (gross amt.)

To the applicant Card Tel.Corp. on behalf of both applicants $538.46 plus $21.54 vacation pay (gross amt.)

To the Government of Ontario Consolidated Revenue Fund $131.80

Interest accrued on the above amounts while held in trust shall be paid to the recipients pro rata.

21The amounts mentioned above as being payable to Lois Louisy and to Card Tel. Corp. are gross amounts. The applicant deducted $325.53 for statutory deductions based on the Employment Standards Officer’s award of $1,318.01 to the claimant Lois Louisy. This deduction amount may no longer be appropriate. The Director of Employment Standards is directed to obtain from the employer, and the employer is directed to provide, the correct amount of statutory deductions, if any, to be withheld from the sum payable to Lois Louisy. That sum, if any, shall then be deducted from the gross amount mentioned above ($728.85 plus $29.15) in the manner permitted by law so as to arrive at a net amount payable by the Director from the money held in trust to Ms. Louisy.

22I shall remain seized in respect of any difficulties encountered in calculating the appropriate amounts owed to each party.

“Anthony Brown”

for the Board