3624-00-ES Sensations Salon, Applicant v. Cindy Tayles, Anne M. Hoy, Employment Standards Officer, and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 62004723
BEFORE: Anthony Brown, Vice-Chair.
APPEARANCES: Jackie Danko for the applicant; Cindy Tayles on her own behalf; Judie Im for the Ministry of Labour.
DECISION OF THE BOARD; November 1, 2001
This is an application for review, pursuant to the Employment Standards Act (“the Act”), of an Order to Pay (No. 58050) issued by an Employment Standards Officer.
A hearing was held in Windsor, Ontario on October 23, 2001.
The applicant is Sensations Salon, a business that offers hair styling and other services to its customers. The claimant, Cindy Tayles worked for the Salon as a hair stylist from September 25, 1999 to April 28, 2000. The issue in this application is whether or not the applicant owes wages to the claimant.
The applicant asserts that Ms. Tayles was paid according to an employment agreement which called for payment of fifty per cent commission on work done by Ms. Tayles. The applicant argues that Ms. Tayles was not actually serving customers for some of the time each business day, and that Ms. Tayles also took time off work each day to help out a friend with his courier business or to attend to other matters of a personal nature.
Ms. Tayles agrees that she was duly paid commission according to the employment agreement, but asserts that, according to the number of hours she worked at the Salon, her pay did not even amount to minimum wage under the Act. She asserts a claim to be paid minimum wage for her hours worked, less salary already paid.
The Employment Standards Officer (“the Officer”) found that Ms. Tayles was entitled to be paid at minimum wage for the hours worked, minus salary already paid for commissions, the difference being $2,213.17 (plus vacation pay). The Officer found that the time that Ms. Tayles was available and waiting to serve customers was deemed to be work “performed”, according to section 12 of Ontario Regulation 325. After some discussion during opening submissions, Jackie Danko, owner of the Salon, acknowledged that section 12 of Regulation 325 does apply to the time Ms. Tayles spent waiting to serve customers and that these hours should be computed into the number of hours worked by the claimant.
The applicant agreed that the Officer’s calculation of Ms. Tayles’ hours worked at the Salon accurately reflects the information contained in the Salon’s appointment book. The book indicates, by means of an “X”, the times at which Ms. Tayles was absent from the Salon during the workday for significant periods, most often to assist her friend (Greg Burian) by picking up mail at the Chrysler automotive plant.
However, Ms. Danko testified that the appointment book does not show the entire picture because Ms. Tyles also spent time during the workday attending to personal business for up to an hour (e.g. shopping), or having various treatments done at the Salon. Ms. Danko acknowledged that she was aware of these activities while she, herself, was working at the Salon.
Ms. Tayles testified that she usually arrived for work at 9:00 a.m., although sometimes a bit later. She generally worked through the busy lunch hour, with only a half hour off. She stated that she also helped out at the Salon by cleaning and answering the phone. She admitted that during the course of her employment she had occasional paraffin treatments, pedicures and manicures by resident staff during her slow periods but stated that these did not consume much time. She had only one personal massage by the resident massage therapist, a fact confirmed by testimony from Ms. Natasha Ziskind, the resident therapist, who also testified that Ms. Tayles helped out with chores around the Salon and “seemed to be there all the time”. Greg Burian confirmed in his testimony that Ms. Tayles occasionally did the afternoon mail pick up at the Chrysler plant. He stated that Ms. Danko was well aware of this arrangement and, if any additional time was required by Ms. Tayles for this work, Ms. Danko was consulted first.
Decision
The core issue in this application is about the number of hours worked by the claimant Ms. Tayles.
Although the applicant concedes that the Officer’s computation of Ms. Tayles’ work from the Salon’s appointment book is accurate, and also concedes that section 12 of Regulation 325 applies to “waiting time” at the Salon, there is nevertheless a dispute about the time Ms. Tayles actually spent working as a courier, or shopping, or having personal treatments at the Salon. Ms. Danko was unable to point to any specific occasion that Ms. Tayles spent working as a courier which was not duly marked into the appointment book. Ms. Danko was well aware of the arrangement Ms. Tayles had with Mr. Burian to do this work. As for the other personal time, the evidence of Ms. Tayles is that she had only one massage, a few paraffin hand treatments and very few esthetician treatments, one of which was given by Ms. Danko herself. Ms. Tayles’ evidence, which was given in an honest and forthright manner, was corroborated by therapist Ms. Ziskind, who confirmed that she only gave one massage to Ms. Tayles and that Ms. Tayles appeared to keep herself busy with chores at the Salon. In contrast, Ms. Danko’s allegations that Ms. Tayles left work for significant periods without marking it in the appointment book was not supported by evidence. Indeed, the allegation seems to be based on a general impression, rather than specifics. In short, the evidence does not reveal that Ms. Tayles spent any significant time away from her duties on personal errands or taking treatments from other staff at the salon. Moreover, the time spent by Ms. Tayles waiting to serve customers is exactly the kind of situation intended to be covered by Regulation 325, section 12.
The applicant has not adduced evidence to satisfy the Board that the Employment Standards Officer’s calculation of the hours worked by the claimant is inaccurate. Ms. Tayles is entitled to be paid minimum wage for those hours as a statutory minimum entitlement under the Act.
Disposition
The Order to Pay is hereby affirmed. The application is dismissed.
The Director of Employment Standards is directed to pay the following amounts from trust:
To Cindy Tayles $2,301.70
To the Government of Ontario Consolidated
Revenue Fund $ 230.17
Interest on the above amounts shall be paid to the recipients pro rata.
“Anthony Brown”
for the Board