2531-00-ES 1340423 Ontario Limited o/a Cars For Less - Stayner, Applicant v. Ian McDonald, and Ministry of Labour, Responding Parties.

Employment Practices Branch File No. 42003480

BEFORE: Brian McLean, Vice‑Chair.

APPEARANCES: Darryl Diefenbacher for the applicant; L. Eisenberg for the Ministry of Labour.

DECISION OF THE BOARD; May 28, 2001

1This is an employer appeal of an Order to Pay made by an Employment Standards Officer.

2The responding party former employee, Ian McDonald, did not appear at the scheduled time for the hearing. The Board waited until 10:00 a.m. for Mr. McDonald to appear. Since he had not appeared by 10:00 a.m., the Board proceeded in his absence.

3The application for review raises two issues: first, whether wages were properly set off and whether Mr. McDonald was entitled to overtime pay and minimum wage.

4Turning first to the set-off issue, the applicable facts are not in dispute and are as follows. Mr. McDonald was an employee of the applicant. Mr. McDonald stole money and a car from the employer and was charged under the Criminal Code. Counsel for Mr. McDonald, Larry Lant, and the Crown entered into discussions with a view to resolving the matter. The employer was not a party to these discussions.

5The Crown and counsel for Mr. McDonald went before a judge at a pre-trial. At the conclusion of that pre-trial, the Crown agreed to withdraw the charges against Mr. Lant if Mr. McDonald made retribution to the employer of the money stolen ($850.00).

6Following the pre-trial, the Employment Standards Officer made an Order to Pay of $1,419.74 against the employer. By letter dated October 27, 2000 Mr. Lant suggested that the Crown withdraw the charges, without the obligation to make retribution since the employer owned Mr. McDonald money as a result of the Order to Pay. On November 8, 2000 Mr. Lant agreed to set off the monies owed and accordingly, the charges were withdrawn.

7Therefore, the end result of those negotiations, which were held without the involvement of the applicant, were that the Crown would withdraw the charges against Mr. McDonald, and Mr. McDonald agreed to a set-off of the $850.00 owed by him to the employer as retribution against the Order to Pay.

8Section 8 of the Act states:

8. Except as permitted by the regulations, no employer shall claim a set-off against wages, make a claim against wages for liquidated or unliquidated damages or retain, cause to be returned to the employer, or accept, directly or indirectly, any wages payable to an employee.

In addition, Section 14 of Regulation 325 states:

14. (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.

(2) No written authorization of an employee shall entitle an employer to set off against, deduct from, retain, claim or accept wages for faulty workmanship, or for cash shortages or loss of property of the employer where a person other than the employee has access to the cash or property.

(3) Where an employee has been given or paid a vacation with pay or payment for vacation in excess of the requirements of Part VIII of the Act, no employer shall set off or deduct such excess against or from any vacation with pay, pay for vacation, or payment under section 30 of the Act.

9In this case no statute provides that the money be set off and there is no order or judgement of court which requires a set-off. Unfortunately, there is also no written authorization by the employee. Mr. Lant’s letter of October 27, 2000 does not suggest that a set-off is appropriate. It therefore appears that the agreement to set off the money was an oral agreement between the Crown and Mr. McDonald. It therefore does not satisfy the request of section 14(1)(c). Moreover, it cannot be said that this aspect of the application for review has been settled since the employer was not participating in any agreements that were reached.

10In view of the foregoing, regrettably, the Board must dismiss this aspect of the application for review. While it is clear that Mr. McDonald stole the money, and it is clear that he agreed with the Crown through counsel that an amount equal to the amount stolen could be set off against the Order to Pay, such agreement does not fall within the exception to section 8 of the Act which are found in the Regulations.

11As for the other issue, the only evidence before me is that Mr. McDonald worked 52 hours per week (44 regular hours plus 8 hours overtime) for the month of March, 2000. Therefore, in order for Mr. McDonald to earn minimum wage for his hours worked, the company owes him $275.34 in respect of minimum wage and overtime pay. He is also owed $361.01 in vacation pay. Finally, he is owed $300.00 for the unproved set-off.

DISPOSITION

12The Director is directed to pay to the employee $949.32, less statutory deductions out of the funds held in trust in this matter. The administrative fee of $141.97 is to be paid to the Ontario Government Consolidated Revenue Fund. The remainder of the sums is to be reimbursed to the employer.

“Brian McLean”

for the Board