Ontario Labour Relations Board
File No.: 0462-00-ES Employment Practices Branch File No.: 51077562 Date: September 27, 2000
Between: Stavros Iliou, Sole Proprietor, o/a Sharky’s Bar & Grill, Applicant v. Mrs. Louise Boyd and Ministry of Labour, Responding Parties.
Before: Christopher J. Albertyn, Vice-Chair.
Appearances: Stavros Iliou and Tom Iliou for the applicant; Louise Boyd and Jennifer Brulé for Louise Boyd; L. Eisenberg for the Ministry of Labour.
Decision of the Board
1This 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. 57893 issued by an Employment Standards Officer on March 24, 2000.
2The Officer decided that Ms. Boyd was entitled to the sum of $1,658.00 as wages and vacation pay due to her for the period October 25, 1998 until June 27, 1999. That figure is the sum of $1,312.00 in arrear wages and $346.00 for vacation pay due for 1999.
3The Officer reached the decision in respect of arrear wages on the basis that Ms. Boyd had worked for an hour each day for which she was not paid.
4The employer, in the person of Mr. Iliou, disputes that Ms. Boyd is entitled to what the Officer ordered. He paid $1,824.00 into trust as a condition for pursuing this appeal, being $1,658.00 in respect of the amount found to be due to Ms. Boyd and $166.00 in respect of the Ministry’s administration fee.
5Three witnesses testified: Ms. Boyd, Ms. Broulé, a fellow employee who in large measure corroborated Ms. Boyd’s evidence, and Mr. Iliou.
6From the evidence the following was established. Ms. Boyd was employed as Mr. Iliou’s manager in his bar, Steve’s. She earned slightly more than the other bartenders, $8.00 an hour as compared to $6.00. She was paid more because she was in charge of the work schedule for the other employees and, it seems, because she was solely responsible for the operation of the bar for much of the day. She alone was on duty for the day shift. Her official shift was from 11:00 a.m. to 6:00 p.m. She was paid for that period. Very occasionally she worked the night shift. Her duties were to prepare the bar in the morning and to get it ready to receive customers when the bar opened to them at 11:00 a.m. Mr. Iliou said that he expected Ms. Boyd to be there between half an hour and fifteen minutes before the opening time. Ms. Boyd and Ms. Broulé, who sometimes worked the day shift, said that they had to be there by 10:00 a.m. The Officer’s order of one hour per day concerns the period from 10:00 a.m. to 11:00 a.m. Ms. Boyd was not paid for the time she spent preparing the bar before 11:00 a.m. She says it took her an hour; Mr. Iliou says it took less time, perhaps half an hour.
7Ms. Boyd had various responsibilities at the start of each day. She would usually pick up groceries of items which would be used to serve food to customers: lettuce, buns and tomatoes. She would buy these items at the grocery store which opened at about 10:00 a.m. She did that perhaps three mornings a week. Then she would come to the bar. It was small, only about 650 sq. ft. She would mop the floor and dry it. She vacuumed the tiny carpet; cleaned and wiped all the tables and the bar counter; cleaned the washrooms, mopped the floors. She shredded the lettuce, cut the tomatoes and prepared the buns for service to customers. Mr. Iliou said that the buns could have been prepared in quiet times during the working day. That is no doubt true, but Ms. Boyd’s uncontested evidence was that she did the preparation beforehand. Each of the activities required before the opening of the bar to customers took about 10 or 15 minutes. Cumulatively, with the grocery shopping, about an hour would be spent in preparation for the customers’ arrival.
8Although Ms. Boyd seldom worked night shift, she did so on rare occasions. Like others who worked the night shift, she was paid until 2:00 a.m., although customers continued to be served until closing time at 2.45 a.m., and ashtrays, dishes and glasses had to be cleaned and washed after the customers had left. This meant that employees would remain at work for approximately an hour after the time for which they were paid.
9So, I find that Ms. Boyd worked for an hour each day for which she was not paid. She was therefore entitled to be paid for that hour as the Officer ordered.
10The only evidence regarding Ms. Boyd’s vacation pay during 1999 was that she was not paid it. She is therefore entitled to it, as the Officer ordered. The employer’s appeal must fail.
Disposition
11I make the following declarations and orders and I issue the following directions:
the employer’s appeal is dismissed;
the $1,824.00 held in trust is to be distributed, with accumulated interest, in the following manner:
a) $1,658.00 to Ms. Boyd;
b) $166.00 to be retained by the Ministry in respect of its administration fee for payment, in due course, into the Ontario Consolidated Revenue Fund.
"Christopher J. Albertyn"
for the Board