Martinek Custom Millwork Limited v. Clifford Podlovics and Ministry of Labour
0191-01-ES Martinek Custom Millwork Limited, Applicant v. Clifford Podlovics and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 33001570
BEFORE: Brian McLean, Vice-Chair.
APPEARANCES: Jeffrey Martinek for the applicant; Clifford Podlovics on his own behalf; Brian Fukuzama for the Ministry of Labour.
DECISION OF THE BOARD; November 2, 2001
1This is an employer appeal of an Order to Pay issued by an Employment Standards Officer. The Order to Pay was for unpaid vacation pay and termination pay.
2The employer initially took the position that the Board did not have jurisdiction to consider the employees’ claim due to section 64.5(2) of the Labour Relations Act, 1995 (the “Act”). However, the employer did not lead any evidence that the employee was covered by a collective agreement at any time and therefore the Board ruled at the hearing, that section 64.5(2) could not apply. This confirms that ruling.
3The only remaining issue is whether the employee is employed in construction and therefore exempted from the termination pay provisions of the Act by section 2(e) of Regulation 327 of the Act.
4Section 2(e) of Regulation 327 states:
- Section 57 of the Act does not apply to a person who,
(e) is employed in the construction, alteration, decoration, repair or demolition of buildings, structures, roads, sewers, water or gas mains, pipelines, tunnels, bridges, canals or other works at the site thereof;
5There was no dispute that the employee spent some of his time in the installation of the company’s product. There was no dispute that such work was construction work. What is in dispute is the amount of time the employee spent in such work and whether such amount caused Mr. Podlovics to be a person who “is employed in the construction …”.
6The employer is a manufacturer of cabinets. The employee spent some of his time in the shop assembling cabinets. He also worked outside the shop on occasion on construction sites installing the company’s product. The employee produced a document which set out the installation (construction) jobs at which he had worked and the time he had worked at those jobs. The total over a three year period was approximately five months.
7Mr. Martinek testified on behalf of the employer that the employer disagreed with the list of jobs provided by the applicant and the duration which he said he worked on those jobs. However, the employer had no records to support its position. Nor was the employer’s evidence anything more than a guess, as Mr. Martinek was clearly not even present at those work sites at all times. I, therefore, prefer Mr. Podlovics’ evidence and find that Mr. Podlovics was employed in the construction of buildings for five months out of the three years he worked for the company.
8If an employee spends a majority of his time engaged in construction duties, that employee is exempted from the right to termination pay by the Regulations (see for example, Re Steams Catalytic, Sept. 3, 1986 (Kerr) E.S.C. 2166). In this case the employee spends less than a sixth of his time doing construction work. Under these circumstances the exemption in section 2(e) of Regulation 327 does not apply.
9For all of the foregoing reasons this application for review is dismissed.
Disposition
10The Director is directed to pay the monies held in trust as wages to Mr. Podlovics and the administrative fee thereon to the Government of Ontario Consolidated Revenue Fund.
“Brian McLean”
for the Board