Creg Quay Marina Inc. v. Dwain Lapointe and Ministry of Labour, 2001 CanLII 17178

Creg Quay Marina Inc. v. Dwain Lapointe and Ministry of Labour

2696-00-ES Creg Quay Marina Inc., Applicant v. Dwain Lapointe and Ministry of Labour, Responding Parties.

Employment Practices Branch File No. 23001055

BEFORE: Pamela Chapman, Vice‑Chair.

APPEARANCES: Pierre Jarry and George Romanko for the applicant; Dwain Lapointe appearing on his own behalf; Karima Chatur for the Ministry of Labour.

DECISION OF THE BOARD; November 30, 2001

1. 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”).

2. The responding party (“the employee” or “Lapointe”) filed a claim with the Ministry of Labour, seeking the payment of vacation pay by the applicant (“the employer” or “Creg Quay”). The Officer appointed to investigate the claim concluded, having regard to the information provided by the parties, that the employee was entitled to vacation pay. She therefore issued Order to Pay #58989, dated November 30, 2000, requiring the employer to pay to the employee $1,168.00. The employer asks the Board to rescind the Order to Pay.

3. At the hearing held in this matter, 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

4. The employee was employed by Creg Quay Marina Inc. from March 31, 1998 to April 1, 2000, earning a rate of $1,000.00 biweekly.

5. He claims that during the course of his employment he received no vacation pay.

6. The employer concedes that it did not pay to the employee separate funds earmarked for vacation pay, but claims that at various times during his employment Lapointe took paid time off work which it characterizes as vacation. Had all the days identified by the employer been taken as vacation by the employee, there is no question that he would have been paid an amount greater than that assessed by the Officer.

7. Sections 28 through 31 of the Employment Standards Act set out an employer’s obligations concerning the provision of vacation and vacation pay:

8. (1) Every employer shall give a vacation of at least two weeks to each employee upon the completion of each 12 months of employment, whether or not the employment was active employment.

(2) An employer shall pay vacation pay to an employee entitled to a vacation under subsection (1).

(3) The vacation pay must be not less than 4 per cent of the wages (excluding vacation pay) earned by the employee during the 12 months for which the vacation is given.

29. (1) The employer shall determine the period when an employee may take the vacation to which he or she is entitled under section 28, which may be a two-week period or two periods of one week each, but in any case the employee shall be given his or her vacation not later than ten months after the end of the twelve-month period for which the vacation was given.

(2) Despite subsection (1) and subsection 7 (3), the Director may require an employer to pay to an employee at any time the vacation pay to which the employee is entitled under section 28.

(3) Subsection (2) applies even if there is a strike or lock-out as a result of a labour dispute.

30. Where the employment of an employee ceases before the completion of a twelve-month period of employment or the employee has not been given a vacation with pay under section 28, the employer shall pay to the employee an amount equal to 4 per cent of the wages of the employee in any twelve-month period or periods or part thereof and in calculating wages no account shall be taken of any vacation pay previously paid.

31. Any agreement between an employer and an employee or employees or his, her or their agent respecting the method of providing funds for paying vacation pay, or payment in lieu of vacation, or of any arrangements for the taking of vacation, is subject to the approval of the Director.

32. The Officer reviewed the various dates raised by the employer and concluded that the employee had received some paid vacation, but that there was an outstanding balance of $1,168.00.

33. In particular, the Officer disallowed various single days on which the employee was away for a part of the day attending at appointments, on the basis that there was no agreement in place which permitted that vacation time be taken in an increment of less than a week, contrary to sections 29 and 31 of the ESA. The employee agreed that he had taken one full day and one half day of vacation on other occasions, and that he had a period of vacation during the Christmas period in 1999, and the Officer deducted the pay he had received during these times from the total amount of vacation pay assessed. She also rejected the employer’s assertion that Lapointe had taken vacation on several other occasions in the absence of any evidence, including time records, to support these claims, and in light of the employee’s evidence that he had been working.

34. At the hearing the main outstanding dispute became the Christmas/New Year’s period in 1998/1999, during which the employer claimed the employee received two weeks’ of paid vacation, and the employee asserted he was working. It was not disputed that the Marina was closed from December 21, 1998 to January 3, 1999. The evidence disclosed that Lapointe was asked by a supervisor to help with snow removal in the event there were snowfalls during the period. The employer took the position that the arrangement that was made was that the employee would come in only if called; Lapointe testified that he understood he was to come in any time it snowed. In any event, it was agreed that he did work on three of the days during the period, for a total of approximately 12 hours and $165.00. On the other days in the period which were not statutory holidays he did not work but did receive his pay.

35. There does not appear to have been any clear discussion between the parties as to how this period would be characterized and on what basis Lapointe was being paid on the days he was effectively “on call”, or on those on which he actually worked. The employer claimed that he was on vacation during the entire period, but that if he worked Lapointe would have the right to take the time back as vacation at a later date. Lapointe disputes the description of this period as vacation, noting that he was unable to do as he pleased, such as travel, and was in fact “on-call” or at work during the entire period. He also recalled that he had been sick for much of the time.

36. Several days during this two week period were public holidays, and it was not disputed that they could not be credited towards the employer’s vacation pay obligation. Similarly, the Officer found, and the employer did not dispute, that May 18, 1998, one of the days on the employer’s list, was Victoria Day and as such Lapointe’s absence on that day ought to be characterized as the taking of a public holiday.

THE DECISION

13. At the hearing the employer dropped several of its objections to the officer’s findings, including its assertion that there was an agreement that time taken for appointments would be considered vacation time despite it not being provided in at least one week periods. The portion of the Officer’s findings relating to those days is therefore upheld.

14. Creg Quay acknowledged that it had no evidence to support its claim that the employee had taken two weeks of vacation during May and August 1999, and accordingly I can find no basis to overturn the finding of the officer that vacation was not taken on those dates.

15. The employer had asserted that Lapointe was on vacation on March 31, 2000, his last day of work, although it conceded that he attended at the workplace on that date. The claim that he was nonetheless on vacation was based on the assertion that the employee did no work that day and instead was engaged in farewells, etc. At the hearing the employer agreed that these facts did not establish that the employee was on vacation, and I therefore confirm the Officer’s finding in that regard.

16. The dispute is therefore confined to the question of an appropriate characterization of the days during the holiday period at the end of 1998 during which Lapointe was not working but nonetheless might have been called upon to do snow removal work.

17. The employer argued that this time should be considered as at least four days of paid vacation, as Lapointe did no work on four of the seven days which were not statutory holidays. Lapointe argued that even on the days he was not called in to do snow removal he was not free to do whatever he might wish to do, such as travel away from the immediate vicinity of the workplace, given the employer’s request that he remain available for call-in. The agreement that he would effectively be on standby also meant that he was unlikely to be able to take his vacation in full week blocks.

18. This case points out the desirability of employers and employees entering into clear agreements as to the treatment of days off, given the requirements of the ESA concerning the provision or vacation. Here it appears there was no real discussion about the status of the days during that Christmas vacation period on which Lapointe held himself in readiness but was not required to work. There was no particular discussion about Lapointe being entitled to some form of standby pay for those days, but there is no question that the request that he remain available did curtail his ability to put his vacation to whatever use he wished.

19. In the circumstances, in the absence of any clear evidence that this period was intended by the parties to be a vacation period, and the concession that Lapointe was indeed expected to be available to work, I have concluded that the days in question should not have the effect of mitigating the employer’s obligation to pay the statutory minimum with respect to vacation pay. The employer feels that it has been exceedingly generous to Lapointe, and that he has been paid more than he would have been entitled to under the statute by way of paid time off. This may be the case, but I have no power to provide for some general mitigation of its statutory obligations where as here an employer fails to record time off and to enter into clear arrangements concerning vacation as required by the statute.

20. In all the circumstances, I am satisfied that the order as to vacation pay should stand as there is no clear evidence that Lapointe was provided with a period of paid vacation as required by the statute during the holiday period at the end of 1998.

DISPOSITION

21. 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 ∅

to be paid to the Employee $1,168.00

(ii) that the administration fee as set

out in the Order to Pay be retained

by the Government of Ontario

Consolidated Revenue Fund $ 116.80

total amount held by the Director $1,284.80

(iii) 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 Chapman”

for the Board