Court File and Parties
2106-00-ES 411241 Ontario Limited operating as CCV Food Services, Applicant v. Ronald Austin and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 61005209
BEFORE: Christopher J. Albertyn, Vice-Chair.
APPEARANCES: Leon Singh for the applicant; Ronald Austin appearing on his own behalf; L. Eisenberg for the Ministry of Labour.
DECISION OF THE BOARD; April 19, 2001
Decision
1This is an employer appeal filed pursuant to section 68 of the Employment Standards Act, R.S.O. 1990, c. E.14, as amended (“the Act”) against Order to Pay No. 61176 issued by an Employment Standards Officer on September 19, 2000.
2Mr. Austin was employed by the applicant (“the employer”) for the period February 8, 2000 until April 9, 2000 (2 months and one day).
3Upon the termination of Mr. Austin’s employment, the employer deducted the sum of $578.36 which was due to him in wages and overtime pay. The reason for the deduction was twofold. Firstly, the employer’s policy is that employees who do not complete their probation (of 3 months) pay for the cost of their uniforms. At the time of his engagement into employment, Mr. Austin consented to this condition of employment. Mr. Austin did not complete his probation. Ostensibly he would be liable for the cost of his uniform, in the sum of $162.44. Secondly, Mr. Austin appears to have stolen the sum of $2,068.00 from the employer and he verbally consented to the employer retaining the wages owing to him at the time of his termination, in order to off-set some of what he had stolen.
4Mr. Austin was charged with the theft of the said sum of $2,068.00 and he pleaded, and was found to be, guilty. His trial for the purpose of sentencing is set for May 11, 2001.
5Unfortunately for the employer, it did not get Mr. Austin’s consent in writing to the deduction. Section 14(1) of Regulation 325 (the General Regulations) is pertinent to the determination of this matter. It sets out the exceptions to the general prohibition against any set-off from wages contained in section 8 of the Act. It reads:
- (1) Despite section 8 of the Act, an employer may set off against, deduct from, claim or make a claim against or retain or accept the wages of an employee where,
(a) a statute so provides;
(b) an order or judgment of a court so requires; or
(c) subject to subsection (2), a written authorization of the employee so permits or directs.
6None of the exceptions provided in that section apply in this case. The employer was not therefore permitted to make the deduction it made from the amounts due to Mr. Austin. The Order of the Employment Standards Officer was therefore properly made. In the circumstances the amount due to Mr. Austin should be paid to him from the funds held in trust by the Director of Employment Standards of the Ministry, unless, of course, any court order should require otherwise.
Disposition
7I make the following declarations and orders and I issue the following directions:
The Order of the Employment Standards Officer in this matter is upheld.
The sum of $678.36 held in Trust by the Director of Employment Standards is to be distributed, with accumulated interest, in the following manner:
a) $578.36 is to be paid in the ordinary course to Mr. Austin;
b) $100 is to be retained by the Director, for payment in due course into the Ontario Consolidated Revenue Fund.
- The application is dismissed.
“Christopher J. Albertyn”
for the Board