3154-98-ES Angelo Guglielmo, Applicant v. 1171736 Ontario Inc. o/a Active Green & Ross and Ministry of Labour, Responding Parties.
3353-98-ES 1171736 Ontario Inc. o/a Active Green & Ross Tire and Auto Centre v. Zolton Kerepesi and Angelo Guglielmo and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 32004739
BEFORE: Marilyn Silverman, Vice-Chair.
APPEARANCES: Angelo Guglielmo appearing on his own behalf; no one appearing on behalf of Zolton Kerepesi; Nazaar Tarmohamed appearing for the employer; Karima Chatur appearing for the Ministry of Labour.
DECISION OF THE BOARD; October 25, 2001
These are two applications for review of an Order to Pay issued by an employment standards officer dated November 18, 1998. The officer ordered the employer to pay amounts in respect of overtime pay, public holiday pay and termination pay. The employer requests review of the officer’s findings and the claimants/employees request review of the amounts assessed.
The employer operates an auto repair and tire sales business in Etobicoke. The claimants were mechanics. There are three areas in which the parties are in dispute; a) overtime pay; b) vacation pay and c) termination pay. One of the applicants, Mr. Kerepesi, did not participate in the appeal after his appearance on the first day of hearing. Angelo Guglielmo, the other applicant, did participate in the hearing.
Overtime Pay
Mr. Guglielmo worked for the employer from October 7, 1996 to December 27, 1997.
The employer contends that Mr. Guglielmo did not work overtime beyond 44 hours in a week (then the statutory maximum) and is therefore not entitled to overtime pay. The employer asserts that the employees worked a maximum of 44 hours in a week over a five (5) day work week. The employer contends that the mechanics were paid 40% of the labour costs billed to the customer for the repair job (commonly referred to as the “shop rate”). There was a minimum guarantee paid to the mechanics and they had general control over their working hours based on the amount of work in the shop at any one time. No deductions were made from the minimum guarantee for employees when they took extended time off if there was no work. Overtime was voluntary. Employees were entitled to a one-hour lunch break. If the shop was not busy, employees could take a 2-3 hour lunch break. Records kept by the applicant, Mr. Guglielmo, were challenged by the employer in some cases on the basis that some of the days he contends he worked overtime were days when he was on vacation.
Mr. Guglielmo contends that he worked beyond the scheduled hours and is entitled to overtime pay. He says that he worked Monday to Friday from 8:00 a.m. to 6:00 p.m. Mr. Guglielmo disputes that he received a one (1) hour lunch break or that he had extended periods of time off work. According to him, he worked 47.5 hours per week. He did not challenge the overtime issue during the term of his employment.
Termination Pay
The employer’s position is that Mr. Guglielmo is not entitled to termination pay as he abandoned his position by not reporting to work as scheduled. Mr. Guglielmo contends that he was physically unable to report to work as a result of a back injury. The employer recalls that he called in sick for a short period and then returned. Mr. Guglielmo said that in his absence the employer issued a Record of Employment to him. Mr. Guglielmo characterized what occurred as a lay-off for which he is owed two weeks of termination pay. He worked for the employer for a period of over one (1) year. He did not advise in writing that he needed or wanted more time off nor did he provide a medical certificate for the time off. He claims that he told the employer that he would be off indefinitely and was awaiting the approval of his doctor to return to work. He did not report to work as he had advised on December 27, 1997. Then he called on January 2, 1998 to say that he was not coming in and did nothing from January 2 to January 12. He did not obtain a medical note until June 1998, some six (6) months later.
The service manager, Mr. Pat Manchisi, was called as a witness by the company as to his recollection of the termination. Mr. Guglielmo received approved time off to rest his back during the holiday period December 22 to December 27, 1997. He was to report to work on December 29. He did not attend at work nor did he call. When called by his manager Mr. Guglielmo said he would be off the whole week. He did not work the entire week of December 29. He was called by Mr. Manchisi on January 12 and told he was terminated. He received his Record of Employment shortly thereafter. Mr. Guglielmo asserts that the employer told him he was terminated because he would not work a changed schedule. The employer asserts it was because he did not show up to work or call in and therefore abandoned his position.
Vacation pay
- Mr. Guglielmo contends that he was not paid vacation pay for the first week of October 1997. The employers’ pay stub does not record vacation pay as a separate item. The employer contends that Mr. Guglielmo was on a paid leave of absence that week.
Submissions of the Parties
The employer contends that this is a case of two disgruntled employees and not a bona fide case of failure to pay overtime. The employer submits that Mr. Guglielmo admitted that his numbers were estimates and some of them did not withstand the test of accuracy and consistency. According to the employers’ calculations the applicants were overpaid.
In respect of the termination issue, the employer contends that Mr. Guglielmo should have reported to work on December 31. Rather, he did not call in or provide a medical certificate. The only medical certificate provided was in June, some six (6) months later.
The employer requests that the appeal be allowed and all amounts, including the Ministry’s administration fee be returned.
Mr. Guglielmo contends that he did not quit but rather was unable to work because of his back problem. He denies that he was on a leave of absence in October 1997 and claims that he should receive vacation pay for the period of time that he has calculated.
In respect of the overtime issue, Mr. Guglielmo says that the records that he kept were accurate and he suggests that the employer’s documents are incorrect.
Decision
Having heard the evidence and considered the usual factors to determine credibility, such as the demeanour of the witnesses in giving their evidence and what is most probable in the circumstances in combination with the documents submitted, I must allow the employer’s appeal in part. In respect of overtime pay, I find that the documents kept by Mr. Guglielmo are not reliable. They do not accurately reflect the hours worked but rather the hours scheduled. They also do not account for days off sick, days when the employee left early or came in late. There also must be an offset to reflect lunch breaks that were provided to the employee. The best available evidence is the employer’s schedule. That schedule provides that there was a minimum wage guarantee. The employee was never paid less than the guarantee and in fact the rate actually earned was always more. That actual rate was calculated on a piecework basis being 40% of what is considered the “shop rate” of $65.00. The employer’s worksheet provides that a calculation was made at $6.85 for all hours worked plus an additional amount of time and one half that rate for all hours worked beyond 88 in any two week. That calculation was not the amount paid. The amount paid was always in excess of that amount because the 40% of the shop rate always exceeded the minimum wage guarantee. However, the rate that should have been paid for the overtime worked is as provided for in section 24(1) of the Act:
(1) Except as otherwise provided in the regulations, where an employee works for an employer in excess of forty-four hours in any week, the employee shall be paid for each hour worked in excess of forty-four hours overtime pay at an amount not less than one and one-half times the regular rate of the employee.
The section refers to the “regular rate” paid to the employee. That rate is the shop rate that was agreed to being, 40% of $65 ($26.00). If that is the rate from which the overtime is calculated then one half of that rate ($13.00) is the amount that should be paid in addition to the regular rate to the employee for all the overtime hours worked. The number of overtime hours (hours over 44 in a week) based on the employer’s record is 130.5. There must be deducted from that a one hour lunch period which amounts to 5 hours in a work week. There were 6 weeks on the employer’s schedule when the applicant worked more than ten hours of overtime. In those weeks he worked 5.5 hours over for a total of 33 hours of overtime. At a rate of $13.00 an hour for the one half time, the amount owed by the employer is $429.00. The officer’s order is amended accordingly.
In respect of Mr Kerepesi the amount owed on the same analysis is $572.00. The Officer’s order is so amended
In respect of the termination matter, I find that Mr. Guglielmo is not entitled to termination pay. He did not call or provide medical documentation (the only medical note being one that is dated and was provided well after the fact in June of 1998). The employer was well within its rights to assume that Mr. Guglielmo was absent without excuse or authorization and to take the position that he was not interested in continued employment and had abandoned his position.
In respect of the vacation pay issue, the employer asserts that Mr. Guglielmo was on a leave of absence and I accept that evidence. No amount is therefore owing under this heading.
Disposition
- Having regard to the reasons given above I hereby order:
(i) that the wages paid to the “Director in Trust”
in relation to this matter be disbursed as follows,
with accumulated interest:
to be paid to the Employer $ 5,788.41
to be paid to Angelo Guglielmo $ 429.00
to be paid to Zolton Kerepesi $ 572.00
(ii) the administration fee to retained by the
Government of Ontario Consolidated
Revenue Fund $ 100.10
total amount held by the Director $ 6,889.51
“Marilyn Silverman”
for the Board