4413-98-ES Phil Gilmore operating as Contex Roofing Company, Applicant v. Frank Arruda, John Emmett (Employment Standards Officer) and Ministry of Labour, Responding Parties.

Employment Practices Branch File No. 30012489

BEFORE: Harry Freedman, Vice‑Chair.

APPEARANCES: No one appearing for the applicant; Frank Arruda on his own behalf; L. Eisenberg for Ministry of Labour and Employment Standards Officer.

DECISION OF THE BOARD; August 1, 2000

1. This is an application under section 68 of the Employment Standards Act, R.S.O. 1990, c. E. 14, as amended (the "Act") for review of Order to Pay No. 49279 issued by Employment Standards Officer John Emmett directing the applicant to pay $622.62 consisting of $522.62 as unpaid wages (vacation pay) and $100.00 statutory administration costs.

2. This application first came before me on Tuesday, January 18, 2000. At that time, the applicant and the representative of the Ministry of Labour were present, but Frank Arruda, the claimant employee, in whose favour the Order to Pay was made, was not. It was unclear from the file whether Mr. Arruda had received actual notice of the January hearing. Under those circumstances, the applicant and counsel for the Ministry of Labour and the Employment Standards Officer agreed to adjourn the hearing rather than proceed with a hearing of which Mr. Arruda, the employee affected by the proceeding, did not have notice and did not attend.

3. This matter was rescheduled for hearing for Tuesday, August 1, 2000. The day before the scheduled hearing, the applicant transmitted a letter to the Board dated July 31, 2000 in which the applicant stated:

Due to a serious family emergency in Peterborough, Ont., I will not be able to attend the attached hearing. I regret any inconvenience this may cause.

Please advise, as to the first available date, so that we may reschedule this hearing expeditiously.

Following receipt of that letter, the Registrar’s office contacted Mr. Arruda and counsel for the Ministry of Labour. While the Ministry of Labour agreed to adjourn the matter, Mr. Arruda did not. As a result, the Deputy Registrar sent the following letter to the parties:

The Board is in receipt of a fax dated July 31, 2000 (attached) from Mr. Phil Gilmore where Mr. Gilmore says he will not be able to attend at the hearing at the Board on Tuesday, August 1, 2000 because of a family emergency.

Please note that failing a consent adjournment the Board may proceed with the hearing unless the party provides detailed reasons for this inability to attend. Mr. Gilmore must provide the Board with more complete details on the nature of “the family emergency” by return fax. The other parties must indicate immediately their position on whether the matter should proceed or not.

The Registrar’s office also contacted the office of the applicant to advise of the necessity to provide more details. No response to the Deputy Registrar’s letter was received from the applicant and the hearing convened as scheduled.

4. The Board, following its usual practice, waited until after 10 a.m. before commencing the hearing in order to allow the applicant or his representative to attend. When the hearing convened, the applicant was not present. I asked Mr. Arruda what he had to say about the applicant’s reasons for not attending the hearing and whether he continued to object to having the hearing adjourn. Mr. Arruda stated that he disbelieved the applicant. He pointed out that the applicant, in his initial meetings with the Employment Standards Officer, had indicated that he wanted to prolong the process as much as possible. Mr. Arruda pointed out that Mr. Gilmore had not indicated the nature of the alleged emergency in his letter to the Board and had not provided a reason for his inability to attend. Furthermore, Mr. Arruda stated that he had lost a day’s pay, approximately $180, to attend the hearing and did not want to lose another day’s pay to come back again. Counsel for the Ministry of Labour advised that although she had consented to the adjournment, she also thought that the applicant was seeking to delay the proceeding so that he might have time to obtain a civil judgment against Mr. Arruda and thereby claim that the amount withheld from him was justified.

5. After receiving the parties’ submissions and reviewing the correspondence from the applicant, I was satisfied that this matter should proceed as scheduled. The applicant had failed to set out the nature of the emergency and why he could not attend the hearing before the Board. More importantly, Mr. Arruda disputed the existence of the emergency and both the Ministry of Labour and Mr. Arruda submitted that the applicant was seeking to delay the proceeding. Therefore, there was no proper basis on which I could rely to adjourn the hearing.

6. The applicant withheld vacation pay he owed to Mr. Arruda because, according to the applicant, Mr. Arruda stole materials from him worth much more than the vacation pay owed to Mr. Arruda. Mr. Arruda explained that he was a foreman on the applicant’s jobs and that from time to time material was stolen from the applicant’s job sites after the applicant’s employees had left the job site for the day. Mr. Arruda denied stealing anything from the applicant.

7. Counsel for the Ministry of Labour pointed out that whether Mr. Arruda in fact stole material from the applicant was irrelevant to the issue before me. She submitted that the Act is quite clear. An employer may not withhold or deduct wages owing an employee except under certain specific circumstances spelled out in the Regulations under the Act. Those circumstances did not exist and therefore the Officer’s Order to Pay was proper.

8. This application must be dismissed. The Act is quite clear. Section 8 of the Act provides:

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.

Section 14 of the General Regulation under the Act (R. R. O. 1990, as am., Reg. 325) provides in part:

(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.

There was no suggestion in the material before me that the applicant had obtained an order or judgment from a court permitting the deduction or retention of vacation pay otherwise payable to Mr. Arruda or that Mr. Arruda had provided the applicant with a written authorization to do so. As there was no statute permitting the deduction from Mr. Arruda’s wages, there was no legal justification for the applicant not to pay the vacation pay earned by Mr. Arruda to him. Therefore I am satisfied that the Order to Pay was properly issued.

Disposition

9. This application for review is dismissed. The Director is hereby directed to remit to Frank Arruda the sum of $522.62 together with interest thereon as

soon as is practicable and to remit the balance of the funds held in trust in this matter to the Government of Ontario Consolidated Revenue Fund.

“Harry Freedman”

for the Board