3422-00-ES 1285290 Ontario Limited operating as Country Platter Restaurant, Applicant v. Misty Dawn DeJong and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 50009605
BEFORE: Patrick Kelly, Vice-Chair.
APPEARANCES: Bob Fanjoy, Grace Fanjoy and Carmel Robertson for the applicant; no one appearing for the claimant; L. Eisenberg for the Ministry of Labour.
DECISION OF THE BOARD; July 10, 2001
1This is an employer appeal of an Employment Standards Officer’s (“the Officer”) Order to Pay #58651 on January 10, 2001 pursuant to section 68 of the Employment Standards Act, R.S.O. 1990, c. E.14 as amended (“the Act”). The officer determined that the responding party, Misty DeJong, (“the claimant” or “Ms. DeJong”) had been terminated by the applicant (“the employer”) on May 14, 2000 without notice, and that the claimant was entitled to termination pay. The Officer also concluded that the claimant had not been paid vacation pay for the 12 months preceding the cessation of her employment with the applicant.
2The hearing in this matter was scheduled to commence at 9:30 a.m. on June 21, 2001. Shortly before the matter was to be heard, an individual identifying herself as the claimant’s mother contacted the Registrar’s office, and apparently advised that Ms. DeJong would be unable to attend the hearing because she unexpectedly had to write an examination of some kind.
3As the claimant did not appear at 9:30 a.m., the Board delayed the commencement of the hearing until 10:00 a.m.. At that point, Ms. DeJong had not appeared. I commenced the hearing by conveying to the parties in attendance the substance of the telephone call between the claimant’s mother and the Registrar’s office. The employer opposed any adjournment of the hearing. The Ministry of Labour (“the Ministry”) took no position as to an adjournment, although it did claim to be disadvantaged without the presence of the claimant. I declined to adjourn the hearing, on the basis that the claimant had failed to seek, in an appropriate manner, the Board’s consent to adjourn. No written request from the claimant was received by the Board, nor did the claimant send a representative to the hearing to argue in favour of the motion. Accordingly, I called upon the employer to call its case. It did so. There was no further evidence tendered.
4The evidence adduced at the hearing established that the claimant had been employed by the employer initially as a dishwasher, then later as a bus person, and finally, for a period of about three months prior to the end of her employment, as a server in the employer’s restaurant business. She was a part-time employee. On May 13, 2000, she failed to report to work for her scheduled shift. The owner of the restaurant, Bob Fanjoy, called Ms. DeJong’s residence and spoke to an individual who Mr. Fanjoy assumed was the claimant’s mother. He inquired after the claimant’s whereabouts, and apparently did not receive a satisfactory answer. He informed the individual to whom he was speaking that, unless Ms. DeJong arrived at work that day, she should not bother to report for the next scheduled shift the following day.
5On May 14, 2000, the restaurant was open for Mother’s Day business. The claimant arrived for work. According to the restaurant’s manager, Carmel Robertson, Mr. Fanjoy informed Ms. DeJong that she should go home and take the following week off as a form of suspension for having missed her scheduled shift the day before. This prompted an angry tirade from the claimant, who stated “I have had it, you can’t do this” and began swearing at Mr. Fanjoy in the presence of the restaurant’s customers. She went on to offer to the same customers derogatory comments concerning the restaurant’s cuisine, and then stormed out of the restaurant, only to return a few minutes later to use the applicant’s phone, which request was denied by Mr. Fanjoy. The claimant left, and within 10 minutes, arrived with her parents, who proceeded to angrily confront Mr. Fanjoy. The police were called, and order eventually restored. Mr. Fanjoy’s last words to the claimant as she left was, “Give me a telephone call”.
6The claimant did not give Mr. Fanjoy a telephone call, and, in fact, did not return to the restaurant until approximately three months later, at which time she indicated to Ms. Robertson that she wanted to see Mr. Fanjoy about getting her job back. Mr. Fanjoy was apparently not present at the restaurant at that time. Ms. DeJong and Ms. Robertson conversed for another few minutes, and the claimant left. Ms. DeJong returned several months later to pick up two cheques, one for $39.53 which Mr. Fanjoy testified represented her last day’s pay, and the other for $83.79, which Mr. Fanjoy described as vacation pay for the year prior to the claimant’s cessation of employment. Mr. Fanjoy was unable to provide the Board with the basis upon which this vacation pay was calculated. Upon retrieving these cheques in December 2000, the claimant had not further direct contact with the employer.
Decision
7Following the tendering of the evidence and the final arguments of the parties in attendance, I issued the following oral ruling:
Having reviewed the evidence, I am persuaded that the responding party, Ms. DeJong, quit her employment on May 14, 2000. I rely for this finding chiefly, but not exclusively, on the evidence given by the applicant’s manager, Ms. Robertson, who witnessed the confrontation between the applicant’s owner, Mr. Fanjoy, and Ms. DeJong. Her uncontradicted evidence was that the Mr. Fanjoy instructed Ms. DeJong to go home and take the following week off as a suspension for her failure to have reported to work the previous day, May 13. Based on all the evidence, I find that termination pay was not due to Ms. DeJong.
I reserve my decision regarding the issue of vacation pay. I will issue a written decision in due course dealing with all the issues raised in this matter, including that with respect to vacation pay.
8That leaves the issue of vacation pay. Mr. Fanjoy’s uncontradicted evidence was that the cheque in the amount of $83.79 constituted what the claimant was entitled to in terms of vacation pay for the year prior to her termination, and that the cheque was cashed. He testified that similar cheques of differing amounts were also issued to the claimant in 1999 and 1998, although those cheques were specifically identified on their face as being in respect of vacation pay, whereas the cheque for $83.79 gives no such indication.
9In the absence of any evidence to the contrary, I accept Mr. Fanjoy’s testimony, and find as fact that the $83.79 constituted the vacation pay payable to Ms. DeJong for the twelve-month period preceding her resignation.
10The application is allowed.
11Pursuant to my authority under section 68(20) of the Act, the Order to Pay in this matter is hereby rescinded.
12I hereby order that the wages ($469.25) and the administrative fee ($100) paid to the Director in trust in relation to this matter be disbursed to the employer.
“Patrick Kelly”
for the Board