1132-00-ES Paradise Banquet & Convention Centre, Applicant v. Carlo Di Nardo, Agnese Minicucci and Ministry of Labour, Responding Parties
Employment Practices Branch File No. 41008543
BEFORE: Caroline Rowan, Vice-Chair.
APPEARANCES: Mr. Gaspere Ciddio for the applicant; Agnese Minicucci and Armando Minicucci appearing on her own behalf; no one appearing for Carlo Di Nardo; Karima Chatur for the Ministry of Labour.
DECISION OF THE BOARD; May 18, 2001
This is an application under section 68 of the Employment Standards Act, R.S.O. 1990, C. E. 14, as amended (the “ESA”) for review of an Order to Pay. The Order to Pay in issue is in the amount of $5,519.27 and relates to statutory holiday pay, overtime pay and vacation pay thereon found to be owing to Ms. Agnese Minicucci (the “claimant”), by her former employer, Paradise Banquet & Convention Centre (the “Company”), the applicant in this proceeding.
At the hearing in this matter, Mr. Gaspere Ciddio, on behalf of the applicant, advised the Board that the applicant was contesting the employment standards officer’s finding that overtime pay is owing to the claimant on the basis that the claimant did not, in fact, work the overtime hours claimed. He also submitted that the employment standards officer erred when he assessed overtime pay owing for a period of fifty (50) weeks rather than for one of thirty-one (31) weeks, as requested by the claimant in her claim filed with the Ministry on December 6, 1999. In addition, he suggested that the Order to Pay should be varied because of an alleged outstanding debt owing by the claimant to the Company in the amount of $4,000.00. Although the application for review also mentions the officer’s finding regarding statutory holiday pay found to be owing and the finding regarding the claimant’s alleged managerial status, Mr. Ciddio advised the Board in the course of the presentation of the applicant’s case that these grounds for review were no longer being relied on. Although at a later point, Mr. Ciddio attempted to reverse himself on the latter issue, I ruled that it was too late for him to do so. The applicant’s case had already been completed and the claimant was being cross-examined. Accordingly, I treated this ground for review as having been abandoned.
Mr. Gaspere Ciddio, the applicant’s General Manager, was the sole witness to testify on behalf of the Company. The claimant testified on her own behalf. In assessing the evidence and arriving at my findings of fact I have considered all of the evidence and have taken into account the demeanour of the witnesses, the clarity of their evidence, the witnesses’ apparent ability to recall events and to resist the tug of self-interest in their responses to the questions, and what seems most reasonable and probable in all of the circumstances having regard to the evidence as a whole.
Was Overtime worked or not?
The claimant worked for the Company for approximately thirteen (13) years until she resigned her employment on or about August 8, 1999. During the period of her employment, she worked in the Company’s kitchen preparing and serving meals at banquets and other events held at the Company facility as well as preparing takeout meals. During low season months, she worked alone in the kitchen with the other chef, Greg Lagamba (“Greg”), to whom she reported. During high season months in the summer, she generally worked with a number of other staff brought in to assist with the preparation and serving of meals.
The claimant testified that she worked in excess of sixty (60) hours per week each week (whether it was high or low season) in the entire year prior to her resignation. She stated that she frequently worked in excess of sixty hours. She was, in any event, certain that she worked a minimum of sixty (60) hours each week. As such, she claimed overtime based on having worked sixty (60) hours each week during the relevant period. In support of her claim, she stated that she regularly worked long hours on her regular work days of Thursday to Sunday. When there was a banquet or an event on one or more of those evenings, she worked from 9:00 a.m. to 12:00 p.m. or 1:00 a.m. She also testified that she frequently worked on her scheduled days off (on Monday, Tuesday and Wednesday) whenever there was an event scheduled on those days such as a birthday party, a meeting or a lunch buffet.
The claimant explained that in low season months she still worked a minimum of sixty (60) hours a week because the Company did not generally call in extra staff during those months to assist with the preparation and serving of meals for scheduled events. As a consequence, she was required to work either alone or only with Greg in the kitchen. She stated that she would, for example, work all week to prepare for an event scheduled on Saturday for 300 or 400 people. She complained that Greg would go home early and leave her to do the work until late into the night. Although there may have been fewer events scheduled in low season months, she still had a lot of work because there were fewer people on staff. She states that in low season she also cleaned pots and prepared large quantities of sauces and other dishes to be frozen and used over a period of six months or more.
The claimant also introduced into evidence some time cards, which she says she punched on her scheduled days off. She states that she decided to punch in her hours worked on those days to show Greg the hours she was working over and above her regular workweek. She did not, however, punch more than a couple of cards because the owner of the Company, Maria, instructed her not to do so, since she was not an hourly paid employee. In or about April 1999, she had an argument with Greg about the fact that she was working extensive overtime but was not being compensated for it. That argument was referred to Mr. Ciddio who had recently started working for the Company as General Manager. On or about April 23, 1999, Mr. Ciddio wrote the claimant a memorandum confirming their conversation concerning her work schedule. That memorandum reads as follows:
April 23, 1999
To: Agnese:
Re: Your work Schedule as per our discussion.
Dear Agnese:
As per our conversation in regards to your work schedule, Greg, Casper & Yourself have agreed that we will finish off the year in keeping your schedule Thursday, Friday, Saturday & Sunday and any extra days during the week as needed by Greg the chef, at your current salary.
We will renegotiate your current salary in April of the year 2000. Next April 2000 we will discuss you punching in for your 60 hours Thursday thur (sic) Sunday and any extra hours will be paid in addition to your salary. Although this is not confirmed as of yet.
Sincerely,
Casper Ciddio
General Manager
PARADISE BANQUET &
CONVENTION CENTRE
Mr. Ciddio explained that the reason he proposed deferring any decision about compensation for hours worked until the following April was because he had only recently started working for the Company. He stated that he “needed to assess a complete year’s functions of all seasons, to fairly evaluate her new salary to be discussed in 2000, as well as evaluate the average number of hours she worked per week.” He maintained that his letter should not be read as confirming the claimant’s claim of working in excess of sixty hours per week, since he was not aware of what transpired prior to March 1999 when he commenced employment with the Company. Subsequently, he left the hours of work to be determined as between Greg and the claimant.
According to Mr. Ciddio, the claimant’s regular workweek consisted of forty and a half (40.5) hours over a period of four days per week from Thursday to Sunday. He stated that the claimant’s regular work was from 9 am to 4 pm on Thursday and from 9 am to 9 pm on Friday, Saturday and Sunday with a half-hour lunch break each day. Mr. Ciddio, however, acknowledged that he has no direct knowledge of the hours that the claimant actually worked during the period in question.
Mr. Ciddio, however, introduced into evidence a number of documents including a summary of payroll from December 1998 to November 1999 and a summary of sales per month during that period to demonstrate that the level of business activity declines in the winter months after Christmas and rises again in the peak months in the summer. He also noted that the Company’s payroll costs also rise and fall in rough correlation with the Company’s level of business activity. Mr. Ciddio asserted that the claimant’s claim to have worked a minimum of sixty (60) hours per week during the entire year prior to her resignation is not credible having regard to the reduced level of business activity during low season months.
Having carefully considered the evidence in this case, the Board is not persuaded that the officer’s determination that the claimant worked a minimum of sixty (60) hours per week in the year prior to her resignation was in error. In this respect, the Board notes that the Company has an obligation under section 11(1)(a) of the ESA to make and keep accurate records in respect of each employee showing the number of hours worked by each employee in each day and week. It appears that the Company did not do so as no such records were introduced into evidence.
In fact, the Company introduced no evidence regarding the actual hours worked by the claimant during the relevant period. Instead, the only evidence offered by it in support of its claim that the claimant did not work any overtime hours (or at least that she worked none in low season months) was provided by Mr. Ciddio who has no direct knowledge of the hours actually worked. Instead, Mr. Ciddio gave evidence regarding the business cycles experienced by the Company to suggest that it is implausible that the claimant worked any overtime hours in low season months.
The Board is not, however, persuaded that the claimant’s claim to have worked a minimum of sixty (60) hours per week even in low season months is not credible. Although the overall level of business was less in those months, the claimant explained that she was still required to work excess hours because there were fewer staff working and because she was required to prepare food for the freezer for use in the upcoming months. The Board also notes that the claimant gave her evidence in a clear and forthright manner and that her evidence seems reasonable and plausible having regard to the evidence as a whole.
In this respect, the Board observes that the claimant had been complaining about working overtime hours without compensation many months prior to her resignation in August 1999. As previously noted, there was a dispute between the claimant and Greg concerning the excess hours she claims to have worked requiring Mr. Ciddio’s intervention in or about April 1999. This argument occurred toward the end of low season. Further, Mr. Ciddio’s correspondence to the claimant of April 23, 1999 purports to confirm a conversation between Mr. Ciddio, the claimant, and Greg. There is no suggestion in that letter that Greg was disputing her claim to be working excess hours. There is also no mention made of reduced business activity requiring the claimant to work fewer hours during that period. Instead, Mr. Ciddio’s letter appears to record an agreement that the claimant was required to work extra days during the week over and above her regular Thursday to Sunday work week whenever required by Greg.
In all of the circumstances, the Board is not persuaded that the officer’s determination that the claimant worked sixty (60) hours each week in the year prior to her resignation was in error.
Did the Officer err in ordering compensation for the period prior to December 6, 1998?
- As previously noted, the second ground for review raised by the applicant relates to the employment standards officer’s finding regarding the number of weeks of compensation for overtime pay owing. For the reasons that follow, the Board finds that the employment standards officer erred in awarding the claimant compensation for the period of a year (less two weeks vacation or fifty weeks) immediately prior to her resignation in August 1999. The Ministry representative is correct that the ESA permits the officer to award compensation for outstanding money that became due to the claimant during a maximum period of one year. However, the relevant period is the year prior to the date the claim is filed with the Ministry, being in this case on December 6, 1999, and not the date the claimant resigned her employment in August 1999. The relevant provisions of the ESA read as follows:
82.3(1) Restriction on recovery of money – In a prosecution or proceeding under the Act, no person is entitled to recover money that became due to the person more than six months before the date on which the facts upon which the prosecution is based first come to the knowledge of the Director.
(4) A person may recover money that became due before the date determined under subsection (1),
(a) if the money became due to the person not more than one year before that date; and
(b) if, in the same prosecution or proceeding, the person is entitled to recover money that became due not more than six months before that date; and
(c) if the money referred to in clauses (a) and (b) became due to the person by virtue of the same provision of the Act or the same provision of the contract of employment.
82.4 (1) Knowledge of the Director – The facts upon which the proceeding or prosecution is based shall be deemed to have first come to the knowledge of the Director on the following date in the following circumstances:
- In the case of an employee who files a complaint under the Act, the date on which the Ministry receives the complaint in a written form approved by the Director.
Under subsection 82.3(4) of the ESA, recovery is limited to not more than one year before “the date on which the facts upon which the prosecution is based first come to the knowledge of the Director”. In accordance with the provisions of subsection 82.4(1) of the ESA, that is the date on which the Ministry receives the complaint in a written form approved by the Director, being in this case on December 6, 1999, the date her claim was filed with the Ministry. In the present case, the restriction prescribed under subsection 82.3(4) of the ESA applies because the claimant is entitled to recover overtime pay and vacation pay thereon that became due not more than six months before the date of her claim.
- The Board therefore concludes that the officer erred in awarding compensation for a period of one year from the date of the applicant’s resignation. The Order to Pay should therefore be varied to restrict the claimant’s recovery to money that became due to her not more than one year before December 6, 1999.
Alleged Debt owing in the amount of $4,000
The Company also submitted that the Order to Pay should be varied on the basis that the claimant owes a debt to the Company in the amount of $4,000. In this respect, it refers to four payments to the claimant in the amount of $1,000 each made on April 3, 1999, July 17, 1999, March 1998 and March 29, 1999. Mr. Ciddio stated that these payments were paid out of the Company’s petty cash. In support of its claim, the Company introduced into evidence a document created by cutting and pasting portions of other documents (which were not introduced into evidence and which were not provided to the Board at the hearing). The portions in issue contained the applicant’s signature beside each of the four dates cited above and beside reference to “$1,000”.
The claimant acknowledged receiving the four payments referred to and signing her name acknowledging receipt of those payments in a book kept by the Company. She stated, however, that the money paid to her was not a loan and that the original document she signed made no reference to a loan. According to the claimant, the money was paid to her as part of her overall compensation, a portion of which was being paid to her “under the table.” She stated that she had been paid cash by the Company for many years under an agreement whereby the Company would pay her $35,000 per year in regular earnings from which source deductions were made and a cash payment of $5,000 per year paid in $1,000 instalments. She stated that these cash payments were made to her and to other employees for many years and that she was never asked to repay these monies. Mr. Ciddio, on the other hand, maintained that the payments made were a loan and that the Order to Pay should be varied as a consequence.
With respect to this ground for review, the Board notes that section 8 of the ESA prohibits an employer from claiming a set off from wages owing to an employee except in limited circumstances prescribed by regulation, none of which apply on the facts of this case. Even if the Board were to find that the claimant owed the Company $4,000.00 as alleged, the Company’s recourse to recover that money lies elsewhere.
The Board would have, in any event, preferred the evidence of the claimant to that of Mr. Ciddio on this issue. In this respect, the Board observes that the claimant was unwavering in her testimony that the money was not a loan but that it was “her money” paid pursuant to an agreement that she freely acknowledged was “not right”. On the other hand, Mr. Ciddio’s explanation that no effort had been made up to and as of the hearing in 2001 to recover money it claimed to be owing to the Company since as early as March 1998 was not particularly convincing. Mr. Ciddio stated that the Company had experienced numerous problems in the way the office had been managed prior to the start of his employment in March 1999, which he said he has started to rectify since then. Among the problems he discovered was the office staff’s failure to seek recovery of loans paid to the claimant.
In addition, the Board notes that Mr. Ciddio offered no details, which might lend some credence to his claim that the payments made were in the nature of a loan. For example, he provided no details concerning why, and in what circumstances, the alleged loan payments were made to the claimant, and why further amounts of $1,000 were paid when the previous alleged loans had not yet been repaid.
For all of these reasons, the Board has determined that the Order to Pay should not be varied to set off the amount of $4,000.00 alleged by the Company to be owing.
The Claimant’s Hourly Rate of Pay for the Purposes of Overtime
At the hearing, the claimant argued that the Board should vary the Order to Pay to reflect an hourly rate of pay based on the method of calculation set out in McKaye (Re), dated May 7, 1996 ES 67/95-190 (Cummings). The Ministry and the applicant objected to the claimant’s request on the basis that they were taken by surprise, since the claimant had not filed her own application for review of the Order to Pay and had not even raised this issue until the day of the hearing. As such, neither the Ministry, nor the applicant, were prepared to make submissions on that issue.
The Board notes that section 68 of the ESA contemplates that any person who considers himself, herself or itself aggrieved by an Order to Pay may file an application for review in writing within forty-five (45) days of the date of the Order. The Board further has the discretion to extend the time for applying for a review if it considers it appropriate to do so. In the present case, the claimant, although apparently aggrieved by the amount of the order to pay, chose not to file an application for review at any time prior to the hearing in this matter. Had she done so, that application for review could have been heard together with the present one.
Instead, the claimant raised an entirely new ground for review with the Board for the first time part way through the hearing in this matter. In the circumstances, the Board does not consider it appropriate to entertain this new ground for review. Neither the applicant nor the Ministry were provided with notice prior to the day of hearing that the claimant intended to raise this new ground and they were consequently not prepared to deal with the issue raised. The Board notes that adjudicators under the ESA have similarly previously refused to allow an applicant to raise new grounds for review during the course of the hearing where prejudice to the other parties would otherwise result. (See for example, Dovercourt Developments Ltd. (Re), March 2, 1982 (Ison) E.S.C. 1126A, Hurowitz (Re), July 23, 1982 (Sheppard) E.S.C.1253). The Board therefore declines to substitute its findings for that of the employment standards officer as it relates to the applicable hourly rate of pay.
Disposition
In summary, the Board accepts that the claimant’s evidence that she worked sixty (60) hours per week in the year prior to her resignation. The Board, however, finds that under the terms of the ESA she is only entitled to recover overtime pay and vacation pay thereon that became due to her in the year prior to December 6, 1999, the date her claim was filed with the Ministry. In all of the circumstances, the Board declines to substitute its findings for that of the employment standards officer with respect to the applicable hourly rate of pay. Finally, the Board rejects the applicant’s suggestion that the Order to Pay should be varied to set off the amount of $4,000 alleged to be owing by the claimant to the Company.
This application is referred to the Manager of Field Services to appoint a Labour Relations Officer to confer with the parties regarding the amount of compensation owing to the claimant having regard to the Board’s determinations herein and to report back to the Board. This panel of the Board will remained seized of this application in the event that the parties are unable to agree.
“Caroline Rowan”
for the Board