Door Man Installations Ltd. v. Mose Benitah and Ministry of Labour
2136-00-ES Door Man Installations Ltd., Applicant v. Mose Benitah and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 32006478
BEFORE: Christopher J. Albertyn, Vice-Chair.
DECISION OF THE BOARD; December 3, 2001
1This a request for reconsideration of the Board’s decision of October 29, 2001, filed under the Employment Standards Act, R.S.O. 1990, c. E.14, as amended (“the Act”).
2Mr. Benitah, the employee, seeks reconsideration for various reasons. Firstly, he says the Board erred in accepting the applicant’s (“the employer’s”) schedules of what amounts were due to him in commission. He says the Board should have rejected the employer’s schedules. Secondly, he says there were discrepancies in the employer’s schedules of sales, which should have alerted the Board to patent errors. Thirdly, Mr. Benitah contends there were sales made to customers, which did not appear on the schedules. Mr. Benitah suggests these contentions could not have been raised earlier because the Board’s erroneous assessment of the figures was not obvious until the decision was issued.
3Mr. Benitah says the Board erred in failing to recognize the duress inherent in his signing the letter presented to him by the employer on January 5, 2000. He explains, as he did at the hearing prior to the decision, that he felt compelled to sign the letter, otherwise he would not have been paid the cheque of $1,000 which was due to him by the employer. He had earlier (prior to Christmas 1999) refused to sign a letter in similar terms. At the hearing he said he signed the January 5, 2000 letter only because he sorely needed the money which was due to him.
4Furthermore, says Mr. Benitah, cheques of December 3, 1999 and January 19, 2000, which the employer said at the hearing were paid to him, were not paid.
5The Board will not reconsider its decision. The reason is that each matter raised by Mr. Benitah was either addressed at the hearing, or Mr. Benitah had the opportunity to do so then, but did not. Taking each point raised by Mr. Benitah in turn. He says the schedules presented by the employer were inaccurate. Those schedules were presented during Mr. Long’s testimony. Mr. Long was cross-examined by Mr. Benitah and the Ministry’s counsel. He was asked of the schedules. There were some differences between two sets of schedules, but Mr. Long was able to explain why they differed. Mr. Benitah suggested the schedules were incorrect, but he could not point to any actual inaccuracy. At the hearing, during his own evidence, he presented invoices which he said were not credited in the employer’s schedules. However, when cross-examined by the employer’s counsel, Mr. Benitah was obliged to admit that the invoices were in fact reflected in the schedules, albeit under different invoice numbers. The figures provided on the employer’s schedule were proven in evidence.
6The Board’s decision of October 29, 2001 explained the circumstances of the conclusion of the January 5, 2000 agreement, expressed in the letter Mr. Benitah signed then. Those circumstances did not amount to duress, such as might cause the agreement to be set aside. Certainly Mr. Benitah was under economic pressure to conclude the agreement, but that is not sufficient to make the agreement ineffective. As a consequence the Board concluded a valid agreement had been reached. It changed the basis upon which Mr. Benitah worked for the employer, as was explained in the Board’s decision.
7The question of alleged duress was raised by Mr. Benitah in argument and the Board gave consideration to that argument when it reached the decision it did.
8At no stage during the hearing did Mr. Benitah challenge any of the amounts which the employer claimed to have paid him. There was no suggestion then by him that he had not received cheques of December 3, 1999 and January 19, 2000, which the employer said at the hearing were paid to him. Mr. Benitah had the opportunity to raise this matter at the hearing, but failed to do so.
9For these reasons, the Board will not reconsider its decision. The request is denied.
“Christopher J. Albertyn”
for the Board