3934-99-ES Trattoria Italia & Caffe, Applicant v. Lynn Diggins; Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 20034543
BEFORE: Pamela A. Chapman, Vice-Chair.
APPEARANCES: Maria Papalia and Pasquale Carrozza for the applicant employer; Lynn Diggins appearing on her own behalf; Karen Northey for the Ministry of Labour
DECISION OF THE BOARD; December 18, 2000
This 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”).
The responding party (“the employee”) filed a claim with the Ministry of Labour seeking the payment of unpaid wages, vacation pay and termination pay by the applicant (“the employer”). The officer appointed to investigate the claim concluded, having regard to the information provided by the applicant and by the employer, that the employee had been dismissed without notice, and that she was owed wages for certain hours worked without pay. She therefore issued Order to Pay No. 58859, dated March 10, 2000, requiring the employer to pay to the employee $470.29, plus the applicable administration fee. The employer asks the Board to rescind the Order to Pay.
At 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
The responding party employee worked for the applicant employer as a waitress from May 17, 1999 to November 10, 1999. Her rate of pay was $5.95 per hour.
The first part of the claim relates to Diggins’ claim that she was required to report to work for various hours for which she was not paid. The first four hours of this claim for unpaid wages relates to her first day of work, when she worked four hours which she was told was unpaid training time. She also alleges that she was not paid for 2.5 hours of work on her last day. At the hearing in this matter, the employer agreed that these amounts were owed to the employee, and no evidence concerning these hours was therefore heard.
The remaining claim for unpaid wages relates to the employee's assertion that she was required to report to work 30 minutes before the scheduled start of each shift, and also to stay 15 to 20 minutes after. The Employment Standards Officer calculated these hours as totalling 43.5 hours, based on notations made by the employee in her datebook. At the hearing, the employee indicated that she had only raised with the officer the claim for the 1/2 hour before the start of the shift, and that she was not seeking pay for the minutes she stayed after. A review of the officer's worksheets reveals that the claim for each day is one half hour or less, except for three days at the start of her employment, May 18, 19 and 20, 1999, when the employee’s notes apparently indicated that she reported to work one full hour before the scheduled start of the shift. As the Order to Pay only related to the claim that the employee was required to report to work before her scheduled working hours, no evidence was heard concerning the suggestion that Diggins was also required to stay on after the end of her shifts.
The employee testified that she was told by one of the owners when she started that she would be required to attend at the restaurant half an hour before the start time posted on the schedule, in order to prepare for the start of the shift. She claimed that this included not only readying herself for the work, by removing her outerwear and stowing her personal belongings, but ensuring that the dining room and the wait stations were ready for service to begin. This might include setting out various items on the tables, folding linens, ensuring adequate supplies at the wait stations, etc. This advance preparation would permit a smooth change of shifts and ensure that she was ready to start taking customer orders promptly at the scheduled start time.
The employer witness conceded that employees, including the claimant, were required to attend at the restaurant about 10 minutes before the scheduled start of each shift, but claimed that this was only needed to give them time to change into their uniforms and ready themselves to start work. He testified that often employees would sit and have a coffee during this interval, but that they were not required to perform job duties. The employer also took issue with the employee's description of the shift changes, claiming that employees on the earlier shifts generally were able to complete all of the duties described by Diggins as being done by employees coming on shift.
The employee disputed the employer's claim that employees used this time to change into uniforms, stating that most of the wait staff came to the restaurant wearing their uniforms as there was inadequate space for them to change.
It was not disputed that employees were paid only from the scheduled start of the shift, no matter what time they came in and what time they signed in. Many employees only sign the timesheet at the end of the scheduled shift, and they are required to record only the scheduled hours, so no record is kept of the time they actually attend at the restaurant.
Two witnesses testified on behalf of the employer: Pasquale Carrozza, one of the owners, and Maria Papalia, his sister and the bookkeeper for the restaurant. Their brother Dominic actually hired and trained Diggins, and it is he who is alleged by the employee to have told her to report for work 1/2 hour before the start of each shift. The employer witnesses had no knowledge of any specific conversations held between Dominic Carrozza and the employee, and he was not called to testify himself.
The second issue relates to the employee’s claim that she was terminated without cause and without notice. At the hearing in this matter the employer conceded that it was obliged to pay one week's termination pay to the employee, plus vacation pay on that amount, in the amount of $160.89. Given that this issue is no longer in dispute, the facts relating to the termination will not be reviewed here.
THE DECISION
Having carefully considered the testimony given by each of the three witnesses, I have concluded that the order to pay should be upheld.
The employee gave her evidence in a straightforward manner, and I accept that she believed based upon what she was told by Dominic Carrozza that she was required to report to the restaurant 1/2 hour before her shift in order to be ready to take customer orders promptly at the start of the scheduled shift. She maintained a record of when she reported to work, which cannot be contradicted by the employer's records, which employees were instructed to fill out by inserting the scheduled start time for the shift, rather than the time they arrived at the restaurant. As noted above, that record reflects her regularly reporting to work 20 minutes to 1/2 an hour before the scheduled start of her shift, other than her first three days of work, when she recorded having arrived an hour early.
The employer witnesses were both certain that no employees arrive at work that early, but were not able to specifically contradict the employee's claims, either as to the instructions given to her by Dominic Carrozza, who did not testify, or to her actual arrival times, as neither witness was regularly in the restaurant when the employee reported to work. In these circumstances, and having regard to the concession that employees are required to report early, I am compelled to accept the employee's claim as to the hours she actually attended at the workplace.
Section 12 of Regulation 325 of the ESA provides as follows:
(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
(ii) in fact performed by an employee although a term of the contract of employment expressly forbids or limits hours of work or requires the employer to authorize hours of work in advance;
(b) where the employee is not performing work and is required to remain at the place of employment,
(i) waiting or holding himself or herself ready for call to work, or
(ii) on a rest or break-time other than an eating period.
(2) Work shall not be deemed to be performed for an employer during the time the employee,
(a) is entitled to,
(i) take time off work for an eating period,
(ii) take at least six hours or such longer period as is established by contract, custom or practice for sleeping and the employer furnishes sleeping facilities, or
(iii) take time off work in order to engage in the employee's own private affairs or pursuits as is established by contract, custom or practice; or
(b) is not at the place of employment and is waiting or holding himself or herself ready for call to work.
- This section makes clear the employer's obligation to pay wages to employees for all time spent at the workplace, rather than just for a scheduled shift, where an employee is required to remain there in readiness, or can be considered on a “break” other than an eating period. Work is also considered to have been performed so long as the employer permits it to be done. In the present case, I have accepted the employee’s evidence, which was corroborated in at least one important respect by the employer’s concession that it required employees to attend at the workplace before the scheduled start of a shift, that she was required to be at the workplace up to 1/2 hour before her shifts began, and that she performed work for the employer during those periods of time. While the employer in this case disputed whether the employee was "required" to attend at the workplace for the hours she has claimed, the member of management who is alleged to have directed her attendance did not testify to challenge her claim about his instructions. Similarly, the employer witnesses were not able to directly contradict the employee’s evidence that she performed work for the employer before the scheduled start of her shift, as they were not generally in the restaurant at that time of day. I have concluded, therefore, that the employee was performing work for the employer within the meaning of the ESA during the hours she recorded, and that she is therefore owed wages in the amount calculated by the Employment Standards Officer.
DISPOSITION
- The Application for Review is dismissed and the Order to Pay is upheld. 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 $ 0.00
To be paid to the Employee $470.29
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: $570.29
(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