1874-00-ES Mark J. LeClair, Applicant v. Sudbury Roundtable/EcoAction Sudbury and Ministry of Labour, Responding Parties.

Employment Practices Branch File No. 10004127

BEFORE: Brian McLean, Vice-Chair.

APPEARANCES: Mark LeClair on his own behalf; Franco Mariotti for Sudbury Roundtable/EcoAction Sudbury and Robert Sinding for the Ministry of Labour.

DECISION OF THE BOARD; October 26, 2001

1This is an application by an employee for a review of the decision by an Employment Standards Officer not to issue an Order to Pay against Sudbury Roundtable/EcoAction Sudbury.

2The Board held a hearing in Sudbury on October 11, 2001 to consider the application.

3The employee’s claim is for: unpaid wages, unpaid “banked time” and mileage.

The Background Facts

4The applicant was an employee of EcoAction Sudbury. EcoAction Sudbury is a non-profit organization devoted to introducing and increasing the awareness of projects which are designed to protect and preserve the environment. The applicant was one of three employees of the organization.

5EcoAction Sudbury is funded through public money (grants) and through revenue generated by the creation of environmental products. EcoAction Sudbury is overseen by another non-profit organization, the Sudbury Roundtable on Health, Economy and the Environment. The Sudbury Roundtable has a Board of Directors.

6The applicant was originally hired by EcoAction Sudbury as a Senior Advisor at an annual salary of $21,476.00. It was common ground that this was a low salary relative to what employees of other non-profit organizations make.

7In August, 1999 the applicant met with Franco Mariotti, the Chair of the Board of the Sudbury Roundtable for a routine update on the activities of the organization. The applicant alleges that at that meeting Mr. Mariotti agreed to increase the salary of EcoAction’s employees, including the applicant, to $28,000.00 per year effective September of that year. The applicant introduced into evidence alleged minutes of that meeting. Points 8 and 9 of those minutes states as follows:

8. Bonuses-it was agreed that Retro Bonuses would be paid to the Senior Advisors for past performance in the sum of $1,411.62 each. This bonus though would only be paid partially inAugust/99 and the balance to all three advisors in October/99. This was a reflection of an accounting adjustment for 1997/98.

9. Pay Increase-it was also agreed that once the bonuses were paid out that the same increase would continue as a pay increase from September 1999 and remain on going as a permanent pay increase. The increase would be $470.54 per month or $1,061.27 BI-weekly gross pay for each Senior Advisor.

8The applicant was unable to establish the authorship of the alleged minutes of the meeting. The applicant also introduced into evidence a copy of an undated agenda which mirrors the items set out in the minutes.

9Finally, the applicant introduced into evidence a copy of a letter which was delivered to the employer. That letter states:

March 8, 2000

To: Heather Campbell

Please submit for the March 14, 2000 Roundtable Board Meeting.

c/o Sudbury Roundtable on Health, Economy, and the Environment

Re: 1999 Promisary pay increase and bonus

Att: Franco Mariotti

Dear Franco:

Ecoaction has obtained some interesting growth in 1999 with EnerGuide for Houses and has also been rewarding for us advisors that participated.

We are writing this letter to elaborate and determine the outcome of a specific discussion with he Roundtable in late winter 1999. It was agreed by the Board and us senior advisors at EcoAction Sudbury that the rate of pay we were receiving was not sufficient over and beyond the first year of working with ecoaction. It was promised by Frank and the Board of Directors at the time that a bonus will be given to us three advisors that would reflect our efforts and capability of generating ongoing revenues. It was acknowledged and agreed that this would be in the form of a bonus that would reflect our past efforts and accomplishments.

The copies of EcoActions balance sheets and bank deposits reflected that there was continual revenues, which did reflect our efforts. As of Jan/2000 there were revenues and accounts receivables that would reflect an excess cash flow of over $20,000.

We would like to se the Boards comittment to fulfilling their promise. With the present payroll being drawn from CCAF funds. We would like you to consider and appreciate the efforts put into EcoAction to generate these revenues, but also come to a agreement on the amount of bonus we feel is fair to us three senior advisors. We unanimously feel that the following formula would reflect a fair and deserving bonus.

FORMULA:

Existing Salary - $28,000.00

Previous Salary - $21,476.00 ( 2 years )

Difference - $6,524.00

Divided by 3 - $2,174.67

The following would reflect our determining amount of $6,524.00.

With the revenue being evident from September/99 to present, it should be considered to reflect a portion of the above amount. $6,524 would reflect a 12 month difference of pay from the existing salary rate. September to December would reflect 4 months which would be 1/3 of the above amount per advisor.

$6,524/ 3 = $2,174.67 per advisor

In closing we would like the Roundtable to seriously consider their promise and acknowledge the time, effort, and commitment level by the three senior advisors and see the above formula as a fair and respectable bonus of appreciation.

Your attention and prompt decision regarding this is appreciated.

Sincerely,

Advisors:

Signatures:

“Mark J. LeClair” (Senior Advisor)

“Mark Gervais” (Senior Advisor)

“Doreen Ojala” (Senior Advisor)

10Based on the minutes of the meeting and his recollection of the meeting, the applicant alleges that the employer promised to increase his salary to $28,000.00 per year effective September 1, 1999. Despite efforts to convince the employer to abide by its promise, the employer did not increase salaries until approximately February, 2000. The applicant claims the difference between the promised salary and the salary he actually was paid.

11Mr. Mariotti for the employer denies completely the allegation made by the applicant that there had been any firm promise to raise the applicant’s salary in August 1999. He testified that at most there was a discussion that suggested the salary of senior advisors would be raised when the organization could afford it. He denied even seeing the minutes of the meeting which were placed in evidence by the applicant. He also produced a copy of an agenda which was dated August 1999 and which was different than the one produced by the applicant in that it contained no reference to a discussion about a salary increase. Mr. Mariotti stated that the employer agreed to increase salaries once the organization’s financial situation improved. He introduced evidence that, until February 2000, the employer was not in a stable financial condition. Finally, he testified that any such increase would have to be approved by the Board of Directors which approval was not given.

Decision

12In order for the applicant to succeed he must demonstrate through evidence on a balance of probabilities that there was an agreement between him and the employer that he would be paid at the annual rate of $28,000.00 from September, 1999. He has not done so. I do not give any weight to the “minutes” of the August meeting which were introduced into evidence by the applicant. Since authorship is not established the minutes are hearsay and cannot be relied on. Moreover, the “minutes” were clearly written by someone with an interest in the results of the salary discussions.

13Based on the evidence that was properly before me I find it more likely that Mr. Mariotti is right that there was no firm promise made to raise the applicant’s salary. I find Mr. Mariotti’s account of the meeting more believable. It is extremely unlikely that Mr. Mariotti would have agreed to a salary increase when it is apparent that at a minimum such an increase would have to be approved by the Sudbury Roundtable’s Board. The Board would have been unlikely to agree to a salary increase when, as I accept, the employer was not financially stable.

14I also find that the employer’s version of events is supported by the conduct of senior advisors following September 1999 when, according to the applicant’s version of events, they were not being paid the salary which they had been promised. There was no evidence of the level of outrage which one would expect were the applicant’s version of events be true. The only serious protest by senior advisers was the letter dated March 8, 2000 (6 months after the date at which the employees allege they were not being paid appropriately) which was put before the Board of Directors. That letter refers to a promise to pay a salary made at a meeting in “late winter 1999”. Under no circumstances can “late winter 1999” be the same meeting that occurred in August 1999 which the applicant now relies on. Moreover, the letter advises the Board that Mr. Mariotti promised a bonus at the late winter 1999 meeting, not a salary increase as is now claimed by the applicant.

15I find therefore that the applicant has not established that he was entitled to a salary increase effective September, 1999. This part of the application is accordingly dismissed.

16The applicant’s next claim is for unpaid “banked hours”. The claim is based on the employer’s system of paying all employees 35 hours pay per week regardless of how much time employees actually work. If employees works more than 35 hours, the excess hours are banked and can be used when the employee is sick or misses work for some other reason. The applicant claims that as of the termination of his employment he was owed 11 ½ hours in banked time. He produced records, produced by the employer’s office manager which showed 11 ½ hours owing to the applicant at the time his employment terminated.

17The employer led no direct evidence regarding the applicant’s hours of work. Mr. Mariotti testified that the office manager had reviewed the applicant’s time sheets and determined that in fact the applicant owed the employer hours. However, Mr. Mariotti did not demonstrate how this analysis was made. In fact, under cross-examination Mr. Mariotti admitted that a deduction was made for the applicant’s attendance at a course, when the only evidence before the Board is that course was required and sanctioned by the employer.

18The Ministry argued that the Employment Standards Officer decision should be upheld because the Officer conducted a spot audit of the employer’s records and found no errors. While the Employment Standards Officer acted appropriately, it is clear that a spot audit does not necessarily demonstrate one way or the other the total of banked hours which might be owing.

19Under the circumstances, the best evidence before me is from the employer’s own unrevised records which were put before the Board by the applicant. Those records demonstrate that 11 ½ hours are owing. Accordingly, this aspect of the application is allowed. The employer owes the applicant 11.5 hours at a rate of $15.46/hour. I see no reason why this amount should be paid at the overtime rate since there was no evidence before me that the applicant ever worked more than 44 hours per week or regarding the employer’s practice regarding overtime.

20Finally, the applicant claims approximately $36 in mileage reimbursement. The Ministry argues that the Act does not give jurisdiction to the Board to deal with such claims.

21Section 1 of the Act defines “wages” as follows:

1. In this Act,

"wages" means any monetary remuneration payable by an employer to an employee under the terms of a contract of employment, oral or written, express or implied, any payment to be made by an employer to an employee under this Act and any allowances for room or board as prescribed in the regulations or under an agreement or arrangement therefor but does not include,

22In my view the applicant’s claim for unpaid mileage cannot succeed because mileage is a “traveling allowance or expense” and therefore is specifically excluded from the definition of wages contained in the Act.

23Because of the Board’s disposition in this case, there is no need to determine in a detailed fashion whether the applicant’s claims are timely. The claim for banked wages clearly was made in a timely fashion.

Disposition

24The Board hereby orders the employer to forthwith pay to the employee $177.79 less statutory deductions as payment for unpaid banked time.

“Brian McLean”

for the Board