865331 Ontario Limited O/A Signage Systems v. Kevin Dunphy and Ministry of Labour
Employment Practices Branch File No. 40011719
BEFORE: Caroline Rowan, Vice-Chair.
APPEARANCES: Fiona Docherty, Sam Cini, John Eldridge and Michael Bennett for the applicant; Karima Chatur for the Ministry of Labour; no one appearing for the responding party employee.
DECISION OF THE BOARD; October 18, 2001
1This 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 in the gross amount of $1,793.79 (inclusive of an administration fee of $163.07) filed by the applicant, 865331 Ontario Limited o/a Signage Systems. The Order to Pay in issue relates to unpaid overtime pay owing to the claimant, Kevin Dunphy, plus vacation pay thereon.
2This application was scheduled for hearing before the Board at 9:30 a.m. on Thursday, October 18, 2001. At that time, neither the responding party, Mr. Kevin Dunphy, nor a representative of Mr. Dunphy, was in attendance at the hearing. After waiting the normal thirty minutes, the Board began the hearing in Mr. Dunphy’s absence.
3The Employment Standards Officer determined that the claimant, Mr. Dunphy, had worked 196 hours of overtime in the claim period, but had only been paid straight time wages for those hours. As a consequence, the Officer assessed that Mr. Dunphy was owed $1,568.00 representing 196 hours of overtime at a half time of $8 /hr, plus an additional 4% vacation pay thereon for a total of $1630.72.
4At the hearing in this matter, Mr. Cini, a representative of the applicant, testified that the claimant, in fact, worked a total of 211.5 overtime hours in the claim period and that Mr. Dunphy was paid for all of those hours at time and a half. The claimant was initially paid straight time wages for those hours on his regular pay cheques and was also compensated the additional half time rate of $8 per hour in two separate cheques. The first cheque in the total amount of $500.00 was paid on June 30, 1999. Mr. Cini testified that that cheque represented $356.00 on account of overtime (or 44 ½ hours at a half time rate of $8 /hr) plus a $144.00 bonus payment. The second payment made on December 17, 1999 reflected payment of $1,336.00 on account of overtime (or 167 hours at a half time rate of $8 /hr) plus an additional bonus amount of $114.
5Mr. Cini, however, testified that the claimant only received a cheque in the amount of $1,200.00 on December 17, 1999 rather than the $1,450.00 owing. Mr. Cini explained that he had deducted the amount of $250.00 from these wages on account of the claimant’s debt to the applicant in that amount. Mr. Cini also indicated that he had deducted the sum of $200.00 that Mr. Dunphy owed the applicant from Mr. Dunphy’s final pay cheque. Mr. Cini stated that Mr. Dunphy had verbally agreed to these deductions from his wages at the time they were made. Mr. Cini had not, however, obtained a written authorization from Mr. Dunphy to that effect.
6Having regard to the uncontradicted evidence of Mr. Cini, the Board finds that the applicant compensated Mr. Dunphy for wages owing in the claim period with the exception only of the amount of $450.00, which was improperly deducted from Mr. Dunphy’s pay cheques. In this respect, 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. While section 14 of Ontario Regulation 325 generally allows an employer to make such a deduction “where a written authorization of the employee so permits or directs”, no written authorization from Mr. Dunphy was obtained in this case. In these circumstances, the applicant's recourse to recover that money lies elsewhere.
7For all of these reasons, the application is allowed in part. The Board varies the Order to Pay by reducing it to $450.00 plus a ten percent statutory administration fee of $45.00 on that amount for a total amount of $495.00. The Board directs the Director of Employment Standards to pay the amount of $450.00 to the claimant, Mr. Kevin Dunphy, and to pay the balance of the monies held in trust, less a $45.00 administration fee, to the applicant, 865331 Ontario Limited o/a Signage Systems.
“Caroline Rowan”
for the Board