2174-99-ES Hiro Hayashi, Applicant v. Manley Steels Limited and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 42 003193
BEFORE: Inge M. Stamp, Vice-Chair.
APPEARANCES: Hiroshi Hayashi on his own behalf; Mark Manley on behalf of Manley Steels; L. Eisenberg on behalf of the Ministry of Labour.
DECISION OF THE BOARD; May 4, 2000
This is an application for review of an Employment Standards Officer’s refusal to issue an Order to Pay brought pursuant to section 68 of the Employment Standards Act (the “Act”).
The applicant, Mr. Hiroshi Hayashi, filed a claim with the Ministry of Labour for unpaid wages for 25 hours at $30.00 per hour. Mr. Hayashi asserts that at the request of Mr. Mark Manley he attended at the premises of Manley Steels Limited and was employed by Mark Manley. The applicant at first testified it was March 11, 1999 however it is not disputed that it was in fact May 11, 1999 as referred to in the Employment Standards Officer’s letter. It is not disputed that Mr. Hayashi attended at the employer’s premises at the beginning of the week and returned the following Monday, May 17, 1999.
What is disputed is whether Mr. Hayashi and Manley Steels Limited entered into an employment relationship on May 11, 1999 which was then terminated, as alleged by the applicant, on the following Monday, May 17, 1999.
It is the company’s position that it had not hired Mr. Hayashi on May 11, 1999. The company asserts that Mr. Hayashi was called to come in for an interview on the first day and the following attendance at the company’s premises was a follow-up interview. The company takes the position that on the second interview the applicant was advised that he did not meet the requirements for the position. .
It was Mr. Hayashi’s own evidence that he had been called by Mr. Mark Manley and that he met with him at Manley Steels. The applicant testified that he had worked for the company for the past seven years on and off. He first met Terry Manley (Mark Manley’s Father) back in the 1970s. Mr. Hayashi testified that Mark Manley asked when he could start and Mr. Hayashi said he could start “today”.
The work to be done involved computer assisted or computer aided drawing (“CAD”) for work in connection with an automated manufacturing process. This system called Master-CAM requires certain skills and/or knowledge. Mr. Hayashi testified that he “saw Manley Steels had these manuals – I asked Mark if I could take them home rather than go to Barrie every day to read them and he told me yes – and then he gave me three manuals – one would have been sufficient – one was an updated version”. After describing the three manuals Mr. Hayashi went on to state: “that completed the interview – I went out I met Mark’s Dad - I talked to him for a couple of minutes and told Mark I was going to come back next Monday”.
It was Mr. Hayashi’s evidence in chief that when he returned the following Monday Mark Manley’s attitude towards him had changed from the last day. At that time Mr. Hayashi told Mark Manley he could probably do the production drawings faster manually on a drawing board than to do them on the computer. It was the applicant’s view that these production drawings were not very difficult and any person with a grade 10 education could have done it.
During cross examination Mr. Hayashi stated that the last time he worked for Manley Steels was in the early 80’s, more than ten years ago. The applicant agreed in his correspondence to the company he refers to working for Manley Steels in 1983/84. In the early 1980’s when Mr. Hayashi last worked for the company he did the drawings manually. There was no computer assisted drawing or CAD system at that time.
The applicant took a CAD course at Humber College in 1990 and last worked using CAD at Ontario Hydro in 1993. Mr. Hayashi agreed he took the manuals home to read to brush up on the CAD program. Although the applicant had last used the CAD program in 1993 he believed it was something he could pick up very quickly. The applicant stated “basically I knew more than half of it – I just had to brush up on it”.
Mr. Hayashi testified he did ask Mark Manley how much he would be paid on May 11 but that he received no answer. He did not think it was strange because in the past he was never told what he was to be paid, that he always put his own figures in (for payment) and in the past this work was always part time. The applicant stated he could not do this work at home as he did not have a computer at home and would have to do it at Manley Steels. It was his understanding this job was going to be part-time, for three months, according to Mark Manley. Mr. Manley’s evidence was that he was looking for a full-time person and that the work is still ongoing as of the date of the hearing.
The applicant testified that he spoke only to Mark Manley with respect to the job. During cross examination on a number of points the applicant indicated since this job was for three months he did not go into any details with Mr. Manley.
It was Mr. Hayashi’s impression or understanding that for this first week he was hired in effect to review the manuals. This took 25 hours. When questioned about how the 25 hours were arrived at the applicant stated “the hours I am giving you is just an estimate – how am I supposed to give you the exact hours?” The applicant testified he kept notes with respect to the hours he worked that week but he threw them away.
The applicant testified that he was not told how much he would be paid, what benefits there were and he was not asked what experience he had on the CAD system. Since this was in his view a short term job Mr. Hayashi did not expect a lot of benefits.
DECISION
Mr. Hayashi’s own evidence is confusing and in some instances inconsistent. Mr. Hayashi relies on his previous experience in being hired by Manley Steels to explain why he did not think it was strange that there was no discussion regarding any terms of employment such as salary and/or hourly rate, benefits, qualifications. The difficulty with this reliance is that the last time Mr. Hayashi worked for this employer was 16 years ago and he was then hired by Terry Manley. Mark Manley was not involved at all at that time. The last time Mr. Hayashi worked for this employer there was no computer assisted manufacturing process in place nor was a CAD program being used.
Mr. Hayashi’s evidence regarding the reasons for either taking the manuals or being given the manuals does not make sense. If there was no discussion about his ability to work with the CAD system then why the need to review the manuals? Equally it does not make sense for an employer to hire a person to review manuals for one week, or 25 hours, at $30.00 an hour without any discussion.
Having reviewed the evidence carefully I find that Mr. Hayashi assumed he was hired on the day of the first interview. However, the facts do not establish that an employment relationship was entered into between the applicant and the employer.
DISPOSITON
- For the above reasons I affirm the Employment Standards Officer’s decision not to issue an Order to Pay. This application for review is dismissed
“Inge M. Stamp”
for the Board