1291-00-ES 383733 Ontario Corp. o/a Skyway Business Machines, Applicant v. Samir Boucenna and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 43002311
BEFORE: Caroline Rowan, Vice‑Chair.
APPEARANCES: Alex Choi for the applicant; Samir Boucenna on his own behalf; Karima Chatur for the Ministry.
DECISION OF THE BOARD; December 27, 2000
This is an application for review of an Order to Pay under section 68 of the Employment Standards Act, R.S.O. 1990, C. E. 14, as amended (the “ESA”). The application was filed by 383733 Ontario Corp. o/a Skyway Business Machines (the “Company”) for a review of an Order to Pay. The Order to Pay relates to vacation pay found to be owing to the Company’s former employee, Mr. Samir Boucenna.
Mr. Boucenna (the “Claimant) was employed by the Company commencing on or about May 1997 to November 19, 1999. Following his resignation, he made a claim for outstanding vacation pay owing to him from the Company in respect of his employment in 1998 and 1999.
The dispute between the parties involves the following two issues. The first issue relates to whether or not the Claimant took one week’s vacation in the week of September 13, 1999 to September 19, 1999 as the Company claims or whether the Claimant worked during that period as he claims. The second issue relates to whether or not the Claimant received the gross amount of $83.15 on account of vacation pay owing to him on his final pay cheque dated January 6, 2000. That final pay cheque was in the gross amount of $483.02.
The Company states that that cheque represents four days wages plus an additional amount on account of vacation pay. The Claimant states that the entire amount of that cheque represents wages owing to him for his last four days of employment; that is for November 16, 17, 18, 19, 1999. The Claimant takes the position that that cheque is, in fact, somewhat less than the amount he calculates as owing for those four days. He states that four days’ gross wages is $541.50 (and not $483.02). Although the Claimant does not claim compensation for the alleged shortfall, he disputes that his final paycheque dated January 6, 2000 includes any additional amount for vacation pay.
At the hearing in this matter, the Company took the position that that final pay cheque represents four days wages for November 16, 17, 18 and 19, 1999 calculated based on $99.97 gross wages per day for a total of $399.87. As indicated at the hearing, the daily amount was calculated by multiplying the Claimant’s semi-monthly pay of $1,083.00 by 2 to arrive at a monthly amount, multiplied by 12 to arrive at a yearly amount and then divided by 52 to arrive at a weekly amount and divided again by 5 to arrive at a daily amount.
The difference between the gross amount of the cheque in the amount of $483.02 and $399.87 is $83.15. The Company states that that additional amount ($83.15) was paid on account of vacation pay.
The parties were able to agree to a number of facts relevant to this application, as follows:
The Claimant’s total gross wages from the Company for 1998 and 1999 was $31,461.52. The Claimant is entitled to 4% vacation pay on that amount equalling $1,258.46.
Of that total amount of vacation pay owing, he received a cheque from the Company in the amount of $313.87 on account of vacation pay.
The Company does not dispute that the Claimant is owed the gross amount of $411.16 on account of outstanding vacation pay for that period.
During the course of the Claimant’s employment, he was paid by cheque on a semi-monthly basis. At the time he resigned from his employment in November 1999, he received the gross amount of $1,083.00 semi-monthly. He received his last regular semi-monthly pay cheque in that amount on November 15, 1999.
The Claimant’s gross weekly wages at the time he is alleged to have taken one week off as vacation in September 1999 was $444.23.
Decision
The Company has the onus of establishing that the Order to Pay should be varied. Mr. Alex Choi, the Company’s accountant, testified on its behalf. The Claimant gave evidence on his own behalf.
With respect to the first issue, Mr. Choi testified that he was advised by Mrs. Kim, the Company’s chief operating officer, that the Claimant had taken off the week of September 13 to 19, 1999 as vacation. He stated that Mrs. Kim is responsible for authorizing vacation. Mr. Choi also introduced a Company record into evidence, which he states was created by Mrs. Kim. On that document, there is a notation at the bottom of the page made by Mrs. Kim, which notes that the week of September 13 to 19, 1999 was taken off as vacation. Mr. Choi indicated that that document was created after the Order to Pay was issued and that there were no other Company records such as payroll records which confirm the Claimant’s absence on vacation that week. He also acknowledged that he had no direct knowledge that the Claimant had been absent that day.
On the other hand, the Claimant testified that he did not take that week off as vacation as the Company claimed and that he had not, in fact, taken off any time as vacation, since his last vacation in June 1998. The Ministry’s representative also pointed out that there are no notations on the Claimant’s pay cheques for September 1999 to the effect that any monies were paid on account of vacation.
Having regard to the evidence before it, the Board is unable to find that the Claimant took one week off as vacation in September 1999 as alleged. In this respect, the Board prefers the Claimant’s evidence that he did not take one week off as vacation in September 1999 over that offered by the Company. The only evidence offered by the Company in support of its position was that of Mr. Choi who acknowledged that he had no direct knowledge that the Claimant took off one week as the Company claimed. He was simply informed by Mrs. Kim that the Claimant had done so and provided no explanation as to why Mrs. Kim was not called to testify.
In addition, the only Company record offered in support of the Company’s position that one week’s vacation was taken was created after the Order to Pay in this matter was issued. In all of the circumstances, the Board has little hesitation in finding that the Company has not satisfied its onus on this point. The Board therefore finds that the amount of vacation pay owing should not be reduced by $444.23 as the Company claims.
The Board is, however, satisfied that the amount of vacation pay owing should be reduced by $83.15 as urged by the Company. The Board finds that that additional amount was paid on the Claimant’s final pay cheque in January 2000. In this respect, the Board prefers the Ministry and the Company’s calculation of wages for the Claimant’s final four days worked on November 16, 17, 18, 19, 1999 in the gross amount of $399.87 based on $99.97 per day over the Claimant’s calculation. The Claimant’s calculation that four days should be calculated by dividing his gross semi-monthly pay of $1083.00 by 2 is untenable. This calculation would yield over a week’s wages given that there are more than four weeks per month. As such, each semi-monthly pay represents more than two weeks’ wages.
The Board therefore finds that the total gross vacation pay owing for 1998 and 1999 of $ 1,258.46 should be reduced by the amount of $313.87 already paid and by the amount of $83.15 already paid by the Company. The total gross vacation pay owing to the Claimant is therefore $ 861.44.
Disposition
- For all of these reasons, the application is allowed in part. The Board amends the Order to Pay as follows:
To the Claimant, Samir Boucenna $861.44 (plus interest thereon)
To be retained by the Government of $100.00 (minimum administration fee)
Ontario Consolidated Revenue Fund
Total $964.44
The balance of the monies held in trust in the amount of $329.81 (plus interest thereon) is to be returned to the applicant, 383733 Ontario Corp. o/a Skyway Business Machines.
“Caroline Rowan”
for the Board