0719-99-ES Casa Do Churrasco Inc., Applicant v. Maria Falsetti and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 20033775
BEFORE: Pamela A. Chapman, Vice-Chair.
APPEARANCES: Emilio Concalves and Denis Vallée for the applicant; Maria Falsetti on her own behalf; Grainne McGrath for the Ministry of Labour.
DECISION OF THE BOARD; October 31, 2000
1This is an application for review of the decision of an Employment Standards Officer, pursuant to section 68 of the Employment Standards Act as amended by the Economic Development and Workplace Democracy Act, 1998, S.O. 1998, c.8 (the “ESA”).
2The responding party (“the employee”) filed a claim with the Ministry of Labour seeking the payment of unpaid wages, reimbursement for amounts deducted from her pay without authorization, termination pay, and vacation pay on those amounts, by the applicant (“the employer” or “Casa do Churrasco”). The officer appointed to investigate the claim concluded, having regard to the information provided by the applicant and by the employer, that the employee was entitled to payment for wages, including overtime, unauthorized deductions, termination pay and vacation pay on those amounts. She therefore issued Order to Pay No. 53901, dated May 18, 1999, requiring the employer to pay to the employee the amount of $397.36. The employer asks the Board to rescind the Order to Pay.
3At the hearing held in this matter on the applicant and employer had an opportunity to give oral testimony and to introduce into evidence various documents, as well as to make submissions concerning the application for review. Having regard to the evidence and to those submissions, the following is my decision.
The Facts
4The employee worked at Casa do Churrasco, and infrequently as well at Portucale Restaurant, two restaurants operated by the applicant, during the period April 18, 1998 to November 28, 1998. She worked originally as a waitress, and was paid $5.80 per hour, and then began to work as a cook, at the rate of $6.70 per hour. Both of these rates are below the minimum wages of $5.95 and $6.85 respectively. The employer does not dispute that the employee was paid less than the minimum wage and is owed the difference.
5Falsetti also worked more than 44 hours per week on several occasions, but was not paid an overtime rate for those hours. The employer disputes a portion of these amounts, claiming that some of the hours were worked at another restaurant and should therefore not be included in the total in determining whether more than 44 hours per week were worked.
6The employer similarly does not dispute that the amount of $126.00 was deducted from the employee’s last pay, for food and beverages allegedly consumed by her during the course of her employment. While he testified that the employee had consumed large quantities of food and drink, worth much more than the amount deducted, the employer did not claim that he had obtained written authorization from the employee to make such a deduction. The employee disputed that she had ever consumed significant amounts of food and drink, or that she had ever been advised that deductions from wages would be made when employees ate at the restaurant.
7The main dispute between the parties concerned the circumstances under which Falsetti ceased work for Casa do Churrasco. The employee claimed that during the fall of 1998 the employer advised her that business was very slow and he had very few hours for her. He offered her some hours at the other restaurant he operated, Portucale Restaurant, where it was busier, and she worked a few times there, but Falsetti claims that he never offered to move her to that location permanently. The employee’s last day of work was November 28. She recalls that on that date the employer told her that he had no more work for her, but that he would keep her “on-call” and would contact her if there was any work available.
8Emilio Concalves, the owner of the restaurants, testified that during November and December he offered Falsetti work several times at Portucale Restaurant, but that she refused to work there.
9Falsetti testified that Concalves did not call her after her last day of work to offer further work at any location, and that she would have accepted had he done so. She claims, though, to have called several times to ask if there was work available, and to enquire about the deduction from her last cheque. She was unable to speak directly to Concalves, but was told that the cheque would be corrected by his accountant. When that did not occur, she contacted the Ministry of Labour to file a complaint.
10Concalves concedes that Falsetti called the restaurant regularly after her last day of work to ask if there was work available, but claims that on each occasion he offered her work at Portucale Restaurant which she turned down.
Decision
11As noted above the employer concedes that the employee was not paid at the minimum wage and as a result does not dispute the order to pay with respect to wages.
12The issue with respect to overtime is whether or not the hours worked at Portucale Restaurant in August 1998 should be included in the total hours worked for the calculation of overtime. The evidence on this issue was somewhat unclear. The two restaurants appear to be separate corporate entities: Casa do Churrasco is incorporated, and the Portucale Restaurant is a trade name operated by a numbered company. Emilio Concalves is 100% owner of the Portucale Restaurant, and was at the time in question a 50% owner of Casa do Churrasco. There is no question that the direction to work at Portucale came from Concalves, and that Falsetti was aware that he was operating both locations. She indicated, however, that she was paid separately for the hours worked there.
13Section 24(1) of the ESA provides as follows:
- (1) Except as otherwise provided in the regulations, where an employee works for an employer in excess of forty-four hours in any week, the employee shall be paid for each hour worked in excess of forty-four hours overtime pay at an amount not less than one and one-half times the regular rate of the employee.
14The section establishes that overtime must be paid when an employee works for “an employer” more than forty-four hours in any week. While the evidence is somewhat unclear, I am satisfied that Falsetti was working for two separate employers when she worked at Portucale Restaurant as well as Casa do Churrasco during August 1998, and that her hours of work should therefore have been calculated separately. This finding results in a deduction of eight hours from the total overtime found payable by the Employment Standards Officer, reducing the total wages payable to the employee to the amount of $131.88, plus vacation pay in the amount of $5.28, for a total of $137.16. The Order to Pay will be amended to that extent.
15Section 12(1) of Regulation 327 under the ESA provides as follows:
- (1) For the purposes of subsections 57 (13) and (14) of the Act and of section 11 of this Regulation, the employer shall not make any deduction from the amounts to be paid thereunder except a deduction,
(a) required to be made pursuant to a statute;
(b) subject to subsection (2), expressly authorized in writing by the person or his or her agent; or
(c) pursuant to an order or judgment of a court.
16The section is entirely clear in requiring an employer to obtain the express written authorization of an employee before deductions can be made from an employee’s wages other than by statute or court order. There was no such authorization in the present case, and the deduction of $126.00 from the employee’s final pay was therefore unlawful. The Order to Pay will therefore be maintained in that regard.
17Having carefully examined the evidence concerning the employee’s termination, I am satisfied that she was laid off due to a lack of work and never recalled. While Concalves testified that he was unhappy with the employee’s performance, he called no specific evidence to establish conduct which would meet the standard of wilful misconduct or disobedience or wilful neglect of duty within the meaning of section 57(10)(c) of the ESA. However, the employer argued that the employee was not entitled to receive termination pay because she was offered but refused work at the Portucale Restaurant.
18Section 2(a) of Regulation 327 under the ESA provides as follows:
- Section 57 of the Act does not apply to a person who,
(a) is laid off after refusing an offer by the employer of reasonable alternate work;
19In relying upon this section to assert that the employee refused reasonable alternate work, the onus clearly lies upon an employer to establish that such an offer was made. Having carefully considered the evidence, I am not satisfied that a clear offer of work was ever made by the employer, or that the employee was provided with enough information about the employment to assess whether it was “reasonable alternate work” within the meaning of the section. If Concalves did offer Falsetti “work” at the Portucale Restaurant after advising her that she was being laid off from the Casa do Churrasco, which is strenuously denied by the employee, it appears that he did it in a quite casual fashion, with no details being provided as to the nature of the work, the hours or the rate of pay, or, most importantly, the amount and/or duration of the available work. Ideally an employer seeking to invoke the exemption in the Regulation should document that an offer was made, or at least provide credible details about the nature of the offer. Details about the work are particularly important given that the implication for an employee is the loss of statutory rights.
20In the circumstances, I have concluded that there is no basis for denying termination pay to the employee, and the Order to Pay is upheld in that regard.
DISPOSITION
21The Application for Review is dismissed and the Order to Pay is upheld except to the extent that the amount ordered in payment of overtime is amended as detailed 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 $ 24.70
To be paid to the Employee $ 372.66
that the administrative fee as $ 100.00
set out in the Order to Pay be
retained by the Government of
Ontario Consolidated Revenue
Fund
Total amount held by the Director: $ 497.36
(ii) interest earned on the monies held in trust in this matter is to be paid to the above parties in proportion to the amounts paid out.
“Pamela A. Chapman”
for the Board