2743-99-ES Pirzada & Co. Management Consultants, Applicant v. Yakubkhan Pathan, Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 33001353
BEFORE: D. L. Gee, Vice-Chair.
APPEARANCES: Manzur Pirzada for the applicant; no one appearing on behalf of Yakubkhan Pathan; Laurie Eisenberg for the Ministry of Labour.
DECISION OF THE BOARD; July 17, 2000
This matter is an application for review of order to pay number 56009 dated November 24, 1999 pursuant to which Manzur Pirzada operating as Pirzada & Co. Management Consultants (the “applicant”) was ordered to pay Yakubkhan Pathan (the “claimant”) the sum of $515.20 in outstanding vacation and termination pay. A hearing was held with respect to this matter on May 31, 2000 at which Mr. Pirzada was present on behalf of the applicant and counsel appeared on behalf of the Ministry of Labour. No one appeared on behalf of the claimant.
The claimant commenced work with the applicant as an accounting trainee on February 15, 1999 at the rate of $8.00 an hour. The claimant was terminated and issued a record of employment on June 11, 1999 that indicated that his last day of work was June 4, 1999. Following a fact finding meeting with the Employment Standards Officer held on October 28, 1999, by letter dated October 30, 1999, the applicant advised the officer that the record of employment issued to the claimant on June 11, 1999 was incorrect and was to be revised by way of the issuance of a new record of employment to indicate that the claimant’s last day of employment was April 16, 1999. On November 11, 1999, the applicant issued a second record of employment indicating that the claimant’s last day of employment was April 16, 1999.
Filed with the Board as exhibits are three cheques issued by the applicant to the claimant. The applicant does not dispute that cheque number 422 dated May 18, 1999 in the amount of $260.28 was issued to the claimant as payment of wages ($8.00 x 40 hours = $320.00 less $59.72 in deductions for EI, CPP and Tax) for the week of April 16, 1999. The cheque bears the notation “Period 4-16-99”. Cheque number 423 dated May 25, 1999 is in the exact same amount, ie. $260.28, and bears the notation
“Period 4-23-99”. Cheque number 424 dated May 31, 1999 is in the exact same amount, ie. $260.28, and bears the notation “Period 4/30/99”. In addition, time cards completed by the claimant indicating time worked on various matters while employed by the applicant were filed as exhibits. The time card for the period April 19 through to and including April 23, 1999 is signed by Manzur Pirzada and bears the notation “Pd CHQ #423”. The time card for the period April 26 through to and including April 30, 1999 is also signed by Manzur Pirzada and bears the notation “Pd CHQ # 424”.
At the hearing Mr. Pirzada asserted that the first record of employment issued to the claimant was incorrect. Mr. Pirzada asserts that the claimant was terminated on April 16, 1999 and not on June 4, 1999. Mr. Pirzada asserts that cheque number 423 was issued to the claimant in satisfaction of his entitlement to termination pay and that cheque number 424 was issued to the claimant in satisfaction of his entitlement to vacation pay plus an additional sum of $158.71 which the applicant now wants the claimant to repay.
I do not find the version of events asserted by Mr. Pirzada to be believable. No explanation was given as to why the first record of employment was issued to the claimant. No explanation was given as to why time cards exist for the claimant, signed by Mr. Pirzada, indicating that the claimant performed work for the applicant during the weeks of April 19 and April 26, 1999. No explanation was given for the notations “Period 4-23-99” and “Period 4/30/99” on cheques numbered 423 and 424 if these cheques were in reality payments for termination and vacation pay. No explanation was given for the overpayment of $158.71 on cheque number 424 if this cheque was in reality intended to be for vacation pay. No explanation was given for the notation “Pd CHQ #423” and “Pd CHQ #424” that appeared on the timecards for the weeks April 19 and 26.
On balance, it is my determination that the documentary evidence suggests that the claimant worked for the applicant during the weeks of April 19 and April 26, 1999 and that cheque number 423 and 424 were, as the notation on the cheques and the timecards indicates, the payment of wages to the claimant for work performed during those weeks. Accordingly, I do not accept that the applicant has paid the claimant any money in satisfaction of the claimant’s entitlement to termination and vacation pay.
Having regard to the foregoing, I hereby affirm Order to Pay No. 56009 and direct that the monies held in trust by the Director of Employment Standards on behalf of Yakubkhan Pathan be paid out to him.
“D. L. Gee”
for the Board