Adam D. Break v. Pilot Tavern and Ministry of Labour
1864-00-ES Adam D. Break, Applicant v. Pilot Tavern and Ministry of Labour, Responding Parties.
Employment Practices Brach File No. 30014088
BEFORE: John Morgan Lewis, Vice-Chair.
APPEARANCES: Adam Break on his own behalf; no one appearing on behalf of Pilot Tavern; L. Eisenberg on behalf of the Ministry of Labour.
DECISION OF THE BOARD; April 18, 2001
1This is an application under section 68 of the Employment Standards Act, R.S.O. 1990, c.E-14 as amended (the “Act”) for review of a refusal of an Employment Standards Officer issue an Order to Pay.
2This matter was scheduled to be heard on March 28, 2001. The applicant, Adam Break, was present at the hearing. The Ministry of Labour was represented at the hearing by counsel who supported the decision of the Employment Standards Officer to refuse to issue an Order to Pay. The responding party, Pilot Tavern (the ”employer”) failed to attend the hearing. The Board is satisfied that the employer received notice of the hearing. The Board’s Notice of Hearing sets out the consequences of failing to appear at the hearing. Paragraph 4 of the Notice of Hearing states as follows:
If you do not attend on March 28, 2001, the hearing may proceed in your absence and you will not be entitled to any further notice of the proceeding. Please be advised that this proceeding will determine your legal rights and entitlements under the Act. Decisions of the Vice-Chair are final and binding of the parties.
3At the commencement of the hearing, Mr. Break advised that he was seeking an order for termination pay and for outstanding vacation pay for 1998 and 1999. Mr. Break advised that he was not seeking relief with respect to any claim he may have for outstanding wages.
4The Board heard from Mr. Break whose testimony was uncontested. Mr. Break testified that he commenced working with the employer on February 2, 1998 in the capacity as General Manager. Mr. Break continued in this role until August 27, 1999 when he was dismissed by the employer. It would appear that Mr. Break continued to work for the employer in some capacity until October 14, 1999 at which point Mr. Break was notified of his removal as General Manager which was effective as of August 27, 1998. The employer did not provide Mr. Break with any termination pay in accordance with the Act.
5Mr. Break testified that he worked for 44 weeks in 1998 and that his earnings were $61,838.80. Mr. Break further stated that in 41 weeks in 1999 he earned $55,900.00. Apart from a cheque in the amount of $1,971.40 which was not cashed by Mr. Break and is now stale dated, Mr. Break did not receive any vacation pay during his tenure with the employer.
6Having regard to the uncontested evidence of Mr. Break, the Board finds that he is entitled to termination pay in accordance with section 57 of the Act as well as all outstanding vacation pay for 1998 and 1999. The Board hereby orders the employer to forthwith pay to the Director of Employment Standards in trust on behalf of Mr. Break the sum of $7,545.44. This amount is broken down as follows:
Vacation Pay – 1998 $61,838.80 x 4% = $2,473.55
Vacation Pay – 1999 $55,900.00 x 4% = $2,236.00
Termination Pay – $1,363.41 x 2 weeks = $2,726.82
($55,900.00/41 weeks = $1,363.41)
Vacation Pay on Termination Pay $2,726.82 x 4% = $ 109.07
“John Morgan Lewis”
for the Board