2750-00-ES Performance & Precision Computer Services Inc., Applicant v. Carlos E. March and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 41009318
BEFORE: Bram Herlich, Vice-Chair.
APPREANCES: Gabriel Azmitia appeared on behalf of the applicant; Carlos E. March appeared on his own behalf; Karima Chatur appeared on behalf of the Ministry of Labour.
DECISION OF THE BOARD; June 7, 2001
1This is an application to review the Order issued by the Employment Standards Officer (Order to Pay Number 55885 dated October 30, 2000). The Officer found that Carlos March (“the employee”) was owed $544.00 in accrued vacation entitlement. The applicant (the “employer”) disputes that claim.
2There is no issue that at the time of his termination, the applicant was paid the equivalent of two weeks salary. The employer claims that payment exhausts the employee’s entitlement to vacation pay. The employee claims that at the time of his termination in March of 2000 he had yet to take the vacation generated by the previous year’s work (the calendar year for vacation purposes was agreed to run from November 1st to October 31st). Accordingly, while the two weeks pay he received satisfied his entitlement generated by his work from November 1, 1998 to October 31, 1999, he received no vacation pay in respect of the work performed from November 1, 1999 to his termination on March 31, 2000.
3The employer claims that the employee had taken all vacation generated by work up to and including October 31, 1999 and thus was entitled to only five months of accrued vacation pay entitlement at the time of his termination. Thus, in the employer’s view, the two weeks vacation pay received was well in excess of the employee’s entitlement and no more vacation pay is owing.
4Although there was a fair amount of confusion in establishing the facts, those facts, while disputed, are ultimately fairly straightforward.
5In a number of disputed areas, there was little in the way of clear documentation to support the claims of either the employer or the employee.
6Further, what emerges is that although the current matter concerns vacation pay owing at the time of termination in March 2001, the real factual dispute between the parties relates to events in 1996. The employee commenced his employment in 1994 and the parties’ positions with respect to the history of his vacations (always taken in two week periods) can be summarized in the following chart:
Vacation earned Taken According Taken According
to Employer to Employee
1994-1995 February 1996 July-August 1996
1995-1996 October 1996 November 1997
1996-1997 November 1997 June-July 1998
1997-1998 June-July 1998 August 1999
1999-2000 [date unknown but None taken
employer accepts August
1999 vacation period as
claimed by employee]
1999-2000 None None
7Thus, it is clear that the parties agree (while they may not agree precisely on the source of the entitlement) that the employee took two weeks vacation in each of the years 1997, 1998 and 1999. Indeed, there is clear documentation to support the 1997 and 1998 vacation periods. There is none to support the August 1999 vacation period but the parties agree that vacation was taken in that year.
8What separates the parties is the vacation taken in 1996. The employer claims four weeks were taken in that year and relies on some expense claims to support that position. The employee acknowledges having taken two weeks in that year but disputes that the two weeks taken correspond to either of the two two-week periods claimed by the employer.
9Thus, it is left to me to reconcile the two competing views presented to me.
10While I am not drawn to the conclusion that either the employer representative or the employee (each of whom testified under oath) deliberately falsified their evidence, I am satisfied, for a number of reasons, that the employee’s evidence is more reliable.
11First, the records purportedly relied upon by the employer were not records of vacation time taken (we did see some records of that sort in relation to some of the periods in question). And while (if they had been furnished with greater comprehensiveness and less selectivity) they might have been arguably consistent with the employer’s claim, they would still not be determinative. I also note that despite its legal obligation to do so (see, in particular, section 11(b)(iii) of the Employment Standards Act), the employer has failed to keep the kinds of records the legislation requires (records which, if the facts were as claimed by the employer, would have enhanced its case significantly).
12Finally, in a contest between the employee’s recollection of his own vacation plans (Mr. March told us, for example, of visitors he had entertained) and the employer’s contrary claim unsupported by any reliable or determinative records, I accept the former as more reliable.
13Accordingly, I am satisfied that, at the time of his termination, the employee had not been paid vacation pay generated by work performed from November 1, 1999 to March 31, 2000.
14None of the parties addressed or otherwise challenged the quantum as determined by the Officer and I see no reason to disturb that finding.
15There is thus no further impediment to the Director to pay out the monies (along with any accrued interest) hitherto held in trust in this matter in accordance with the terms of the order to pay.
16This application is dismissed.
“Bram Herlich”
for the Board