Ontario Labour Relations Board
3561-00-ES Tracy Henderson, Applicant v. 1213930 Ontario Inc. operating As Dockside Grill and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 21104269
BEFORE: Pamela A. Chapman, Vice‑Chair.
APPEARANCES: Tracy Henderson and Colin McCoy on behalf of the applicant; no one appearing for the responding party employer; Graine McGrath for the Ministry of Labour.
DECISION OF THE BOARD; October 4, 2001
[1]. This is an application for review of the decision of an Employment Standards Officer, pursuant to section 68 of the Employment Standards Act as amended by the Economic Development and Workplace Democracy Act, 1998, S.O. 1998, c.8 (“the ESA”).
[2]. The applicant (“the employee”) filed a claim with the Ministry of Labour seeking the payment of termination pay by 1213930 Ontario Inc. operating as Dockside Grill (“the employer” or “Dockside Grill”). The Officer appointed to investigate the claim concluded, having regard to the information provided by the applicant and by the employer, that she was “in all probability, guilty of wilful misconduct” and therefore not entitled to termination pay. He therefore refused to issue an Order to Pay.
[3]. At the hearing held in this matter on July 12, 2001, the employer failed to appear, despite having received written notice of the date and time of the hearing. By letter faxed to the Board offices on July 11 Michael Phillips, who owned the restaurant at the time of the events in question, stated that he would not be able to attend. He made certain submissions in this letter concerning the merits of the application, including reviewing the findings of the Employment Standards Officer which were contained in a narrative report. Phillips indicated that there were two people who might have been witnesses on his behalf at the hearing (including the Employment Standards Officer) but that “it would not be cost effective to elicit their testimony”. In light of this correspondence, I conclude that the responding party employer had clear notice of the hearing and of its significance, but chose not to attend and instead to take his chances as to the outcome.
[4]. The applicant and her representative were given an opportunity to give oral testimony and to introduce into evidence various documents, as well as to make submissions concerning the application for review. Having regard to the evidence and to those submissions, the following is my decision.
THE FACTS
[5]. Henderson was employed at the Dockside Grill as a waitress from September 19, 1999 to October 15, 2000. She earned $6.25 per hour plus gratuities.
[6]. She was terminated by Michael Phillips, who alleged once she filed her complaint with the Ministry of Labour that she had been fired for wilful misconduct.
[7]. According to the testimony of Ms. Henderson, she was told by Phillips that she was being let go due to a shortage of work, when she attended to work a scheduled shift on the evening of October 15, 2000. On October 24, 2000 the employer issued a Record of Employment confirming this reason for her termination. Phillips did not allege cause prior to the investigation of the Employment Standards Officer, and has at no time issued an amended Record of Employment.
[8]. At the fact-finding meeting held by the Employment Standards Officer, Phillips explained his decision to terminate Henderson with reference to several events he claimed to have learned of after his return from vacation in October 2000. First, he was told that Henderson and other staff had been involved in playing cards with customers at the restaurant, and that wagers had been made. Secondly, he claimed that another employee named Tina Harvey told him that Henderson had gone into his office some months earlier and looked at payroll information relating to other employees, as well as items found in the garbage. It was not disputed that the office is open to employees.
[9]. At the fact-finding meeting Henderson admitted to having participated in the card game, but asserted that no money had been bet. She said that the customers had insisted on it, and that she thought it best to comply with their wishes. She also claimed that her work was done and that she had asked another employee for his approval.
[10]. Henderson told the Employment Standards Officer that it was Harvey, and not her, who was looking through payroll information in the office, as she was angry that she had not got a raise. Henderson was present and was able to observe the payroll information before she left. She recalled that this incident had occurred some four months earlier.
[11]. The Employment Standards Officer concluded that Henderson’s participation in the card game did not constitute wilful misconduct, a result with which I agree. As a result, and in the absence of the employer, no evidence was led at the hearing concerning this incident.
[12]. The Officer also apparently believed that is was Harvey, and not Henderson, who initiated the search of documents in the office, but nonetheless concluded that it was wilful misconduct on her part not to have tried to stop Harvey or reported her actions to management immediately.
[13]. At the hearing Henderson testified about the incident with Harvey in the office. Harvey was working as a cook at the Dockside Grill when Henderson started to work there. She quit for a period and then returned.
[14]. The office in question is located near the kitchen right behind the place where wait staff place and pick up orders, so staff pass by its door frequently. It is a small room, about five by seven feet, and very crowded with a desk, small table, filing cabinets and chairs. Staff have to go into the room regularly, as the petty cash is kept there, along with aprons, order pads, extra pens and the liquor used to stock the bar. Staff also go in and sit at the desk to count their cash at the end of a shift, to write in or read the daily journal, which tells staff about specials, etc., or to use the telephone. Schedules are kept in the office, as well as on the door into the kitchen.
[15]. Staff also attend at the office to pick up their cheques on payday. Phillips would fold pay statements in half and staple them with the writing on the inside. Usually employees’ names would be printed on the outside, but sometimes not, in which case staff would have to open the edge of the folded pay statement to determine which one was theirs. The pay statements and cheques would be left in a pile on the desk for staff to sort through to find the right one.
[16]. Henderson said that about four months prior to her termination she saw Tina Harvey going through the pile of pay statements, but that she didn’t know whether or not she was just looking for her own. However, it became clear to her that she must have been looking at more than just her own statement when Harvey came out to the wait station and expressed upset that the other cook was being paid more than she. This occurred in the summer of 2000 just before Harvey quit and began to work at another restaurant, which Henderson understood had occurred because she was unhappy about her pay.
[17]. Harvey came back to work at the restaurant just before Henderson was fired in October 2000, and was still working there at the time of the termination. Another employee Shauna Liscombe who was interviewed by the Employment Standards Officer and allegedly told him that she too was aware of the incident in the office also continued to work at the restaurant after Henderson’s termination. Neither Harvey nor Liscombe testified at the hearing.
[18]. Henderson testified that she has worked as a waitress for six years, and has always been paid the minimum wage for servers. She claimed to have no expectation of earning more, and therefore no interest in what anyone else at the restaurant was earning.
DECISION
[19]. The applicant argues that the events described in the evidence, even if they were relied upon by Phillips to support her termination, do not constitute wilful misconduct. She suggests that it was not part of her job to monitor the activities of other staff, including Harvey, and that she did not believe therefore that she had any obligation to report her suspicion, based on Harvey’s comments after going through the pay statements on the desk in the office, that she had looked at least one other staff member’s pay.
[20]. Henderson also notes that two other staff members who admitted to Phillips that they had known, for more than four months, that someone, Harvey or Henderson, had gone through pay records were not terminated despite their failure to report this promptly.
[21]. In the absence of any evidence from Tina Harvey I must conclude that the events in the office occurred as described by Henderson, who was in any event completely forthright and believable. Her story has not changed since she was questioned at the meeting with the Employment Standards Officer, and her credibility is enhanced by the fact that she admitted to the events which he concluded disqualified her from termination pay as soon as they were raised with her.
[22]. The credibility of Phillips’ allegations, on the other hand, is not enhanced by his failure to raise this alleged wrongdoing with Henderson at the time of the termination or to claim cause on the Record of Employment.
[23]. Henderson’s limited involvement in the alleged, but unestablished, viewing of employee pay statements by another employee some four months before her termination certainly does not meet the standard of wilful misconduct, and so I must respectfully disagree with the conclusion of the Employment Standards Officer. Indeed, the Ministry of Labour concurred at the hearing of this matter that the evidence, which did not differ significantly from what had been admitted by the applicant at the fact-finding meeting, did not establish conduct so serious as to deprive an employee of the basic right to minimum notice of termination under the ESA.
[24]. Henderson provided evidence of her earnings at the hearing, which accorded with the amounts asserted by the employer on the Record of Employment. As she was employed for more than one year, she is entitled to two weeks’ notice according to section 57(1)(b) of the ESA, which I have calculated as $468.51 plus vacation pay for a total of $487.25.
DISPOSITION
[25]. The Application for Review is allowed and the Officer’s refusal to issue an Order to Pay is set aside. 1213930 Ontario Inc. operating as Dockside Grill is hereby ordered to pay to Tracy Henderson:
(i) termination pay in lieu of two weeks’ notice, plus vacation pay thereon, in the amount of $487.25.
[26]. 1213930 Ontario Inc. operating as Dockside Grill is further ordered to make all applicable statutory deductions from these monies.
“Pamela A. Chapman”
for the Board