Swaran Singh Khatra v. Behl Chemicals Inc. and Ministry of Labour
3595-98-ES Swaran Singh Khatra, Applicant v. Behl Chemicals Inc. and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 52005636
BEFORE: Marilyn Silverman, Vice-Chair.
APPEARANCES: Swaran S. Khatra and Garry Gaurav for the applicant; Paul Marshall and Bhupinder Singh Behl and Dr. Edward Sorokin for the responding party; Frank Camilleri for the Ministry of Labour.
DECISION OF THE BOARD; June 12, 2000
1This is an employee appeal of a decision of an Employment Standards Officer dated November 24, 1998, refusing to issue an Order to Pay on behalf of the applicant for unpaid wages and overtime pay.
2At the commencement of the hearing on January 14, 2000 the applicant ("Mr. Khatra") who was aided by his own interpreter requested an adjournment of the hearing. The reason for the request was that his lawyer was required to attend at Superior Court in Brampton and unable to attend at the Board hearing scheduled for the same date and time. In support of his request, the applicant provided the Board with a letter from his lawyer dated January 13, 2000 addressed to the Board. The letter was not provided to the Board prior to the hearing nor was it copied to counsel for Behl Chemicals Inc. ("the employer"). In his correspondence counsel for the applicant outlined his scheduling conflict and indicated that he had informed counsel for the employer that he would be seeking an adjournment.
3The employer opposes the adjournment. Counsel states that he was presented with the letter at the hearing and that the week prior to the hearing counsel for the employer called counsel for the applicant at which time the adjournment request was raised by counsel for the applicant. Counsel for the employer states that if he had not initiated the call it is likely that that information would not have been conveyed earlier than the date of the hearing. Additionally, counsel asserts that this is the second adjournment requested by the applicant; the first (for the originally scheduled hearing date of July 23, 1999) having been consented to by the employer.
4The representative for the Ministry of Labour also opposes the request as it is the second request for an adjournment.
5After considering the request, the submissions of the parties and the circumstances, I denied the adjournment request.
6I am of the view that this is not a proper case to grant the adjournment request. This is the second such request and the applicant made no effort prior to the hearing to secure the consent of the other parties or even to raise this matter before the Board. Accordingly, the request for an adjournment was dismissed.
7Mr. Khatra's claim is for unpaid wages and overtime pay. He also raises a claim regarding lunch periods in 1997 but as this was not raised prior to the hearing and was not part of the original claim to the Ministry of Labour any claim for improper or inadequate lunch periods or pay thereof is not properly part of this application.
Overtime pay
8Mr. Khatra claims overtime pay is due for the period 1996 and 1997. His employment standards claim is dated March 23, 1998. Therefore based on the statutory limitation period in section 82.3(1) and (4) of the Employment Standards Act only the amounts claimed from March 23, 1997 and following can be recovered. That section provides as follows:
82.3 (1) In a prosecution or proceeding under the Act, no person is entitled to recover money that became due to the person more than six months before the date on which the facts upon which the prosecution or proceeding is based first come to the knowledge of the Director.
(4) A person may recover money that became due before the date determined under subsection (1),
(a) if the money became due to the person not more than one year before that date;
(b) if, in the same prosecution or proceeding, the person is entitled to recover money that became due not more than six months before that date; and
(c) if the money referred to in clauses (a) and (b) became due to the person by virtue of the same provision of the Act or the same provision of the contract of employment.
9Mr. Khatra's position is that he was not properly remunerated by the employer for overtime worked. However, he has no basis, documentary or otherwise, for that claim. He asserts that the employer's records would bear out that claim but there was no evidence of a request by his counsel or the applicant himself for the records nor were they ever subpoenaed.
10Mr. Khatra could not provide any evidence other than his statement that the amounts calculated for overtime were incorrect.
11In respect of the claim for unpaid overtime amounts, the applicant's claim is based upon the fact that he asserts that the employer improperly changed the payroll records and that he is therefore entitled to more overtime than was recorded. The employer denied that allegation. No evidence was presented to support the employee's position other than the bald assertion that the records must have been changed. On that basis I find that no additional overtime amounts are owing over and above those that were calculated owing by the Employment Standards Officer and duly paid to the employee.
Unpaid Wages
12Mr. Khatra contends that he worked for the employer for a two week period from January 12 – 24, 1998 and was not paid for that time. The employer disputes that and says that Mr. Khatra attended at the employer's premises during some of the days during that period but was not requested to work and did not do so. Basically, the employer asserts that the applicant was simply attending at the premises of his own volition and not at the request of the employer.
13Mr. Khatra testified under oath that he was called on January 7, 1998 and did work during that period. He was not paid and estimates he is owed approximately $900.00.
14The employer disputes this claim. They called two witnesses. Dr. Edward Sorokin, the first witness, a consultant in the chemical industry and an employee of a supplier to the employer. Dr. Sorokin's evidence under oath was that in the course of his work he had occasion to visit the employer's premises. He recalls doing so during the period January 12 to January 23, 1998. He states that the operation is a small one and everyone at work is visible. He said he saw Mr. Khatra only on one of the days, January 22, 1998 and he recalls joking with him about the fact that Mr. Khatra was wearing a white shirt and so could not have been working. Dr. Sorokin also testified that January was a "dead" month in the industry and typically a slow period.
15Mr. Bhupinder Singh Behl, owns the company and has been operating it for 20 years. He gave evidence that Mr. Khatra was paid a monthly salary of $2,000.00 He testified that he had no employees at the beginning of 1998 and he was working on his own at that time. He states that the company was slow during the period at issue and all the orders would have been filled by him personally.
16Mr. Behl stated that Mr. Khatra was at the employer's premises for a few days during the period January 12 - 23 but he was not working. Mr. Behl stated that he told Mr. Khatra he would call him when he had work for him but he did not feel it necessary to tell him to go home if Mr. Khatra wanted to stay. Mr. Behl claimed that Mr. Khatra had nothing else to do. On this basis Mr. Behl allowed him to stay. Mr. Behl testified that Mr. Khatra never filled an order during this period. He stated that during his peak period he had generally employed 2 students and one regular employee. This period was a slow period and he employed no one during this time.
17Based on the evidence presented, I must conclude that there is not sufficient evidence before me to support Mr. Khatra's claim. The evidence of the employer's witness is consistent with the position that no employees were employed in early January 1998. The applicant's position is that once again in this context records were changed. There is simply no evidence that there was any tampering with payroll records or any other of the employer's records.
18Having regard to the evidence presented, I find that Mr. Khatra did not perform work for the employer in the period from January 12, 1998 to January 23, 1998.
DISPOSITION
19This application is therefore dismissed.
"Marilyn Silverman"
for the Board