Catherine M. Stahls v. Harbourview Marina and Ministry of Labour
2128-98-ES Catherine M. Stahls, Applicant v. Harbourview Marina and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 13002148
BEFORE: Tim Sargeant, Vice-Chair.
APPEARANCES: Catherine Stahls appeared on her own behalf; no one appeared for the responding party (employer) and Robert Sinding for the Ministry.
DECISION OF THE BOARD; June 28, 2001
This is an employee appeal originally filed pursuant the Employment Standards Act, R.S.O. 1990, c.E-14, as amended (the “Act”).
A hearing was held on June 20, 2001. No one appeared on behalf of the responding party employer. The hearing was originally scheduled to commence at 9:30 a.m. but in fact was rescheduled to 1:00 p.m. There was no indication in the file that the employer’s Notice of Hearing had been returned or that the applicant had requested an adjournment. The hearing lasted until 2:30 p.m. and still at that time the employer or a representative had not yet appeared.
The issue involved in this appeal concerns Ms. Catherine M. Stahls claim for what she alleges were unpaid commissions for the period April 1, 1997 until she left this employment on September 17, 1997.
In a letter dated August 7, 1998 the Employment Standards Officer indicated in part that “I am denying your claim for commissions which you have filed as owing to you. I have sent a number of times to the employer, Demands Requiring Production of Records. The employer has failed to provide me with these records. It is impossible for me to calculate any commissions owing to you as I have neither records from the employer nor yourself.”
As no one appeared on behalf of the employer, the evidence of Ms. Stahls was not contradicted. I found Ms. Stahls to be a very credible and believable witness. She testified that she was hired on the understanding that she would receive $961.54 bi-weekly plus a commission of 4% on gross part sales and accessories. She was the only person working in the Parts Department. She testified that such commission was to be paid every three months but that during her employment from May 1995 to September 1997 on many occasions, payment had not been made on time. The last commission cheque she received was in August of 1997 for the amount of $2,933.14. She was told by her employer that this cheque was to cover commissions earned up until April 1, 1997.
Ms. Stahls testified that the summer months were the best selling months for commission purposes. She was experienced in the marina business having worked in such business since 1973. She also testified that business in the summer of 1997 had been very busy in the parts department, and significantly greater than in the summer of 1996. She felt that her commissions may have been as high as $1,400.00 to $1,600.00 for this period but admitted she had no record of sales even though she had sought them from the owners.
It would appear that this employer is no longer in business. Based on the records, Ms. Stahls did provide concerning commissions paid to her in 1996 and 1997 this Board finds that the evidence of Ms. Stahls that she would have earned at least $1,400.00 in commissions in the period of April 1, 1997 to September 17, 1997 is not unreasonable.
Counsel for the Ministry quite correctly in my view, takes the position that the Board has the discretion in these circumstances where the employer has not appeared and has been asked by the Ministry to produce records, to determine the commission entitlement based on the best evidence presented.
I therefore find that in the period of April 1, 1997 to September 17, 1997 based on the best evidence before me that at a minimum Ms. Stahls would have earned $1,400.00 in commissions.
DISPOSITION
In the circumstances, Order to Pay 52566 is amended to provide an additional amount of $1,400.00 for commissions owing to Ms. Stahls.
It is to be noted that in a letter sent to Ms. Stahls in relation to the Order to Pay dated July 31, 1998 by the Employment Standards Officer, it is stated “that if the employer does not appeal the Order to Pay, the Ministry of Labour will process this claim through the Employee Wage Protection Program”. Ms. Stahls testified that she had never received $535.39 and had not been notified that any claim had been filed on her behalf through the Employee Wage Protection Program.
“Tim Sargeant”
for the Board