0285-00-ES 1384112 Ontario Limited o/a Roseglen Weight Loss & Wellness of Canada, Applicant v. Lisa Hoy and Ministry of Labour, Responding Parties.
BEFORE: Patrick Kelly, Vice-Chair.
APPEARANCES: Maryam Salehi appeared on behalf of the applicant; No one appeared on behalf of responding party Lisa Hoy; Mircho Mirchev appeared on behalf of the Ministry of Labour.
DECISION OF THE BOARD; October 12, 2000
This is an employer appeal filed pursuant to section 68 of the Employment Standards Act, R.S.O. 1990, c. E.14, as amended (“the Act”) against Order to Pay No. 59258 issued by an Employment Standards Officer on March 17, 2000.
The responding party, Lisa Hoy did not attend the hearing which took place on October 6, 2000.
The applicant was not represented by legal counsel. I informed the applicant’s representative that she was entitled to participate, but that this matter was a legal proceeding, and that she bore the risk of participating without legal counsel.
There were a number of undisputed facts in this matter. Lisa Hoy was employed by the applicant from October 19, 1999 to November 12, 1999. Her rate of pay was $8.50 per hour. Ms. Hoy had net wages owing for work performed in the amount of $406.64, at the time of her resignation on November 12, 1999. Those wages have not been paid by the applicant to Ms. Hoy.
The issue in this case is whether or not the applicant’s action in withholding or setting off the wages owed to Ms. Hoy is permitted by the Act. Section 8 sets out the general prohibition respecting set-off against wages. It states:
Except as permitted by the regulations, no employer shall claim a set-off against wages, make a claim against wages for liquidated or unliquidated damages or retain, cause to be returned to the employer, or accept, directly or indirectly, any wages payable to an employee.
O. Reg. 325 R.R.O 1990 (as amended), referred to hereinafter as “Reg. 325”, contains the exemption to the general prohibition contained in section 8 of the Act. Section 14 of Reg. 325 provides as follows:
(1) Despite section 8 of the Act, an employer may set off against, deduct from, claim or make a claim against or retain or accept the wages of an employee where,
(a) a statute so provides;
(b) an order or judgment of a court so requires; or
(c) subject to subsection (2), a written authorization of the employee so permits or directs.
(2) No written authorization of an employee shall entitle an employer to set off against, deduct from, retain, claim or accept wages for faulty workmanship, or for cash shortages or loss of property of the employer where a person other than the employee has access to the cash or property.
(3) Where an employee has been given or paid a vacation with pay or payment for vacation in excess of the requirements of Part VIII of the Act, no employer shall set off or deduct such excess against or from any vacation with pay, pay for vacation, or payment under section 30 of the Act.
At the outset of the hearing, the Board asked a number of questions of the applicant to determine the applicant’s position. The applicant explained that the wages were withheld on the basis that Ms. Hoy allegedly had, in the three days previous to her resignation, taken for herself the proceeds of product sales made between Ms. Hoy (on behalf of the applicant) and the applicant’s clients. The applicant alleges that Ms. Hoy took over $1,000.00 in cash pursuant to those product sales. The applicant characterized Ms. Hoy’s alleged actions in two ways: One, it claims that Ms. Hoy was, in effect, paying herself in advance for wages due and payable later by the applicant; and secondly, it contends that, in respect of the remainder of the monies, Ms. Hoy committed theft. The applicant admitted it had no basis in fact for its view that Ms. Hoy had helped herself to wage advances.
The applicant admitted that none of the exemptions cited in Reg. 325 were applicable in this case. That is, in withholding the wages, the applicant was not acting pursuant to a statute, an order or judgement of a court, or a written authorization by Ms. Hoy.
At this point in the proceeding I took submissions from the parties in attendance as to how I should proceed. Counsel for the Ministry submitted that, based upon the admissions of the applicant, there was no need to hear evidence, and that the application should be dismissed because the applicant had failed to show that the exemptions set out in Reg. 325 were applicable in this case. The applicant contended that evidence should be tendered.
In response to those submissions, I made an oral ruling in which I declined to inquire further into the matter, and dismissed the application. These are the written reasons for my oral ruling.
In arriving at my decision, I accepted all the facts alleged by the applicant as provable. I did not accept, however, the applicant’s characterization of Ms. Hoy’s alleged actions in respect of the product sales as being the payment of advance wages. There simply was no basis offered by the applicant for this view.
Even if the facts alleged were proved true there would be no basis for the applicant’s assertion of a right under the Act to withhold Ms. Hoy’s earned wages. The applicant’s actions are prohibited under section 8 of the Act, and, based on the admitted facts, there is no available exemption in section 14 of Reg. 325 that provides the applicant relief from that prohibition.
DISPOSITION
- The Board makes the following orders:
(i) that the wages paid to the “Director in trust” in relation to this matter may be disbursed as follows:
to be paid to the Employee $406.64
(ii) that the administration fee as set
out in the Order to Pay be retained
by the Government of Ontario
Consolidated Revenue Fund $$100.00
total amount held by the Director $ 506.64
(iii) the application is dismissed.
“Patrick Kelly”
for the Board