0814-00-ES Kamal Elassal, Applicant v. Courtyard by Marriott and Ministry of Labour, Responding Parties.

Employment Practices Branch File No. 30013971

BEFORE: Caroline Rowan, Vice‑Chair.

APPEARANCES: Kamal Elassal appearing on his own behalf; Ernie Gec for the responding employer; Laurie Eisenberg for the Ministry.

DECISION OF THE BOARD; December 29, 2000

Nature of the Application

1This is an application for review under section 68 of the Employment Standards Act (the “ESA”) filed by the applicant, Kamal Elassal, of an Employment Standards Officer’s (the “Officer”) refusal to issue an Order to Pay.

2The applicant made a claim for overtime premiums and termination pay alleged to be owing to him from his former employer, the Courtyard by Marriott (the “Employer”). Following a fact finding investigation, the Officer determined that the following wages were owing to the applicant:

Overtime premiums $1,459.35

Termination pay $ 538.56

Vacation pay $ 58.33

Gross wages found owing $2,077.78

As the Employer paid this amount voluntarily and no additional amounts were found owing, no Order to Pay was issued.

3The applicant objects to the Officer’s finding regarding the amount of overtime premiums owing. He claims to be entitled to a total of $6,166.34 in respect of overtime premiums. In support of his claim, he states that he worked 267 hours over and above forty-four (44) hours per week (not 79.5 hours as determined by the Officer) during the course of the three and a half month period of his employment with the Employer. The applicant’s claim therefore represents an average of in excess of sixteen (16) hours of overtime per week, or an average of over twenty (20) hours more than the applicant’s regular forty (40) hour work week established by the Employer.

Decision

4The applicant has the onus of establishing on a balance of probabilities that the Officer’s determination was incorrect. (Arora (Amar) (Kennson Bindery Services Ltd.) ESC 93-92 (February 26, 1993) Wacyk). In this case, the applicant therefore has to establish that the Officer’s finding that he was entitled to overtime premiums based on 79.5 overtime hours worked was incorrect and that he, in fact, worked the 267 overtime hours he claims.

5The applicant’s evidence regarding the hours he worked and the records he kept of those hours was subject to cross-examination by the Employer’s representative. After hearing the evidence, both the Employer’s representative and the Ministry’s representative submitted to the Board that the applicant’s evidence regarding the hours he worked was not credible for a variety of reasons and that his records of those hours were not reliable. For the reasons that follow, the Board agrees.

6In assessing the evidence, the Board has taken into account such factors as the demeanour of the applicant, the clarity of his evidence and what seems most reasonable and probable in all of the circumstances having regard to the evidence as a whole. In particular, the Board notes that the applicant’s answers to questions were at times evasive. For example, on several occasions, the applicant responded to a question in cross-examination with a question or a rhetorical remark such as “why don’t you ask the Employer”. The Board was on several occasions required to direct the applicant to answer the questions posed. Furthermore, other circumstances of the applicant’s claim lead the Board to reject his evidence as being not credible.

7The applicant commenced employment on or about September 27, 1999 as a purchasing/receiving clerk. At that time, the hotel operated by the Employer was under construction. The applicant’s duties and responsibilities therefore changed over time after the building was completed and after the hotel opened for business on or about November 17, 1999. The applicant received a base salary of $28,000 per year, paid in bi-weekly instalments. He never received any compensation for overtime. Instead, he received his regular bi-weekly pay (based on $28,000 per year) throughout the entire three and a half month period of his employment. The applicant’s regular hours of work established by the Employer were from 7:00 a.m. to 3:30 p.m. with an unpaid lunch break of half an hour.

8The applicant states that he worked considerable overtime from the beginning of his employment with the Employer and that he tracked his hours on a calendar on a regular basis from the commencement of his employment. He did so in order to keep track of his overtime. The applicant states that he kept a written record of the hours he worked on a blank monthly calendar, which he kept in a file folder at home.

9The hours recorded by the applicant are, however, inconsistent with his oral evidence regarding the nature and extent of the hours worked. The applicant states that after the first week of his employment he commenced working at 7 am and that he worked each day until the work was finished. Although the applicant agreed in cross-examination that work could finish at any time of the day and not just at half past the hour, he could not provide a satisfactory explanation for why his records always indicated that his workday ended at half past the hour. The only explanation offered by the applicant for the fact that each day recorded ends at half past the hour was that he would generally round down by approximately five minutes or so. By way of example, he indicated that if he worked until 5:35 p.m., he would simply record “5:30 p.m.”

10This explanation would perhaps have been more plausible if at least some of the notations on the calendar submitted covering approximately three and a half months had stated that his day was completed on the hour. His notations are, however, simply inconsistent with his evidence that he worked each day until his work was completed, which he conceded could occur at any time and not simply at or around half past the hour. Instead, the record of his hours ending in all cases at half past the hour appears more consistent with a desire to make the calculation of the overtime hours claimed easier. Because all noted hours end at half past the hour, a calculation of overtime worked in a week simply requires adding up all of the full hours worked beyond 3:30 p.m. and determining how many full hours were worked beyond 44 in a week.

11In addition, the applicant maintains that he recorded his hours on a regular basis over a three and a half month period as they were worked. The Board, however, observes that a review of the notations made on the original document is more consistent with a document written at a single sitting. In this respect, the applicant conceded that his notations of the hours he claims to have worked appear to be marked in roughly the same spot on each day of the calendar. He also conceded in cross-examination that all of the notations on the calendar covering a three and a half month period of his employment appear to have been written with the same black pen.

12In cross-examination, the applicant explained the notations by stating that he has developed a habit of always using a black pen, since he finds that black ink photocopies better. However, a review of the original calendar document reveals that the notation “original” was made by the applicant at the top of the page in red ink. In addition, a review of the original document also suggests that the applicant not only always used a black pen when recording his hours, but that he always used the same black pen during the course of that three and a half month period.

13In all of the circumstances, the Board is unable to accept that his record of hours worked beyond 3:30 p.m. represents the time he left work “when the job was done”. The Board is also unable to accept the applicant’s evidence that the notations made on the calendar were made on a regular basis from the commencement of his employment on numerous different days over that three and a half month period. Instead, a review of the records kept by the applicant suggests that the calendar was created at a single sitting using the same pen with end times ending on the half hour for ease of calculation.

14Although the Board does accept the applicant’s evidence that he worked on various occasions beyond his prescribed quitting time of 3:30 p.m. because of workload, the Board has difficulty accepting that his overtime was as extensive as he claims. In this respect, the applicant claims to have worked on average twenty (20) hours in excess of his regular work week for the entire three and a half month period of his employment. He claims to have recorded his hours for overtime purposes regularly from the commencement of his employment in order to protect himself. Yet, during that same period, he was never paid any compensation for overtime and he never once even asked the Employer if it had a policy on overtime despite having the opportunity to do so when he dealt with the Employer’s Human Resources representative on occasion regarding other work related matters.

15While the Board has little difficulty accepting that an employee may be afraid to assert or even question his or her rights during the course of his or her employment, the applicant did not offer this as an explanation when questioned. Instead, when questioned about why he waited three months to assert his claim for such extensive overtime hours or why he did not even first ask if the Employer had an overtime policy, he said that the law allowed him six months to make his claim. He noted that he had therefore done so within that time frame. In all of the circumstances, it is implausible that the applicant would not even have questioned whether there was an overtime policy in circumstances where he claims to have been working an average of approximately 50 per cent more hours than his prescribed 40 hour work week.

16For all the foregoing reasons, the Board is not satisfied that the applicant’s evidence is credible or that his record of hours worked is reliable. The Board therefore finds that the applicant has not discharged his onus of establishing that the Officer’s decision was in error.

Disposition

17This application is accordingly dismissed.

“Caroline Rowan”

for the Board