4448-98-ES 1153800 Ontario Inc. o/a Baker’s Dozen Donuts, Applicant v. Rose Sherren and Ministry of Labour, Responding Parties.

Employment Practices Branch File No. 34-001154

BEFORE: Marilyn Silverman, Vice‑Chair.

APPEARANCES: Byung Joon Lee for the applicant; Karen Northey for the Ministry of Labour; no one appearing for the responding party.

DECISION OF THE BOARD; April 11, 2000

1. 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. 52289 issued by an Employment Standards Officer on February 29, 1999.

2. The matter was scheduled to be heard at 9:30 a.m. on February 7, 2000. Notice of the hearing was properly given to the responding employee (“Ms. Sherren”) well in advance of the hearing. There was no appearance by Ms. Sherren at the appointed time for the hearing. The matter was delayed for a period of half an hour in case of a late arrival. Notwithstanding the delay, there was still no appearance by Ms. Sherren when the matter was to be heard. The hearing then proceeded in the absence of Ms. Sherren.

3. There are three issues in dispute in this case:

a) whether wages are owed for a training period;

b) whether Ms. Sherren was terminated and thereby entitled to termination pay under section 57 of the Act;

c) whether Ms. Sherren is entitled to additional amounts for work performed on Canada Day, Labour Day and Thanksgiving Day in 1998.

4. At the hearing, the employer agreed that Ms. Sherren was owned $137.12 for premium payments under 3(c) above and the Ministry of Labour concurred with that calculation.

5. Mr. Byung Joon Lee gave sworn evidence on behalf of the applicant. He is the owner of the doughnut shop. He testified that that in June 1998 Ms. Sherren attended at his premises and said she wanted experience to get a job. In his view she was a volunteer for that period of time which spanned 14 hours over two days; June 6 and 7 1998. She worked 8 hours one day and 6 hours the next. During that time she was learning how to use the cash register, watching how to serve customers and learning about the product. According to Mr. Lee she was “hired” on June 9, 2000.

6. On the issue of termination pay, Mr. Lee’s evidence was that Ms. Sherren’s quit. On October 22, 1998 she was given a verbal warning by him which was later reduced to writing about bringing her children to work. Mr. Lee expressed concern about the safety of the children in the doughnut shop and further the fact that Ms. Sherren left a soiled diaper on the table. Later that day Mr. Lee gave evidence of an altercation he had with Ms. Sherren’s husband. Later that night, Ms. Sherren returned to the shop and requested her wages and 4% vacation pay which was provided to her. She acknowledged in writing by letter dated October 23, 1998 that she was paid these amounts.

The training period

7. I am not prepared to find that the 14 hours worked on June 6 and 7, 1998 was work of a voluntary nature as characterized by the employer. To attend at an employer’s premises and perform work as an orientation period is work for which wages are owed. In this regard, I was referred by the representative for the Ministry of Labour to the definition of employee in section 1 of the Act and the provisions of section 12(1)(a)(i) of Regulation 325 of the Act which provide:

"employee" includes a person who,

(a) performs any work for or supplies any services to an employer for wages,

(b) does homework for an employer, or

(c) receives any instruction or training in the activity, business, work, trade, occupation or profession of the employer,

and includes a person who was an employee.

12. (1) Subject to subsection (2), work shall be deemed to be performed by an employee for the employer,

(a) where work is,

(i) permitted or suffered to be done by the employer, or …

8. The employee is therefore owed wages for that period in the amount of $95.90 ($6.85 per hour x 14 hours).

Termination pay

9. Based on the evidence provided by the employer and in the absence of any other evidence from Ms. Sherren, I find that she did signify an intention to resign from her employment and therefore no termination pay is due under section 57 of the Act. The employer simply advised Ms. Sherren that the employer did not want her children at the place of employment while she was at work for legitimate safety and other reasons. As confirmed by the representative for the Ministry of Labour there was no evidence of a threat of dismissal and the decision to leave the employ was made by Ms. Sherren herself. Therefore I find no termination pay is due.

Disposition

10. Having regard to the above, I hereby order:

(i) that the wages paid to the "Director in trust" in relation to this matter be disbursed as follows:

to be paid to the Employer: $ 269.49

to be paid to the Employee: $ 233.02

(ii) that the administration fee

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 $ 602.51

“Marilyn Silverman”

for the Board