2371-00-ES 1229322 Ontario Ltd. operating as Mighty Mike’s Bar & Grill, Applicant v. Jo-Anna Pakulski and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 32006505
BEFORE: Christopher J. Albertyn, Vice-Chair.
APPEARANCES: David S. Reiter, Hasan Cocelli and Sowgiul Cocelli for the applicant; Joanna Pakulski and Halina Bayne for the employee; L. Eisenberg for the Ministry of Labour.
DECISION OF THE BOARD; April 17, 2001
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 the Order to Pay No. 57477 issued by an Employment Standards Officer on September 28, 2000.
2The style of cause is amended to reflect the correct name of the responding employee: “Jo-Anna Pakulski”.
3A hearing took place on April 6, 2001. A further date for hearing has been arranged for Thursday, September 13, 2001.
4Two issues arose from the hearing on April 6, 2001: firstly, whether the employer’s counsel is permitted, as part of his cross-examination of Ms. Pakulski, to obtain details of her criminal record; secondly, whether as a result of the clarification of certain issues during the hearing, certain money paid into trust by the employer in respect of this appeal may be refunded.
Details of the criminal record
5During the course of Ms. Pakulski’s cross-examination, employer counsel asked her whether she had a criminal record. She admitted she did. Counsel then asked of the details. Ms. Pakulski, who is not represented by counsel, inquired whether she was obliged to answer the question. The Ministry’s counsel objected to the question on the basis that it was irrelevant.
6The employer’s counsel argues the question is relevant because credibility is at stake in this case and, if Ms. Pakulski has been convicted of an offence involving dishonesty, that would be relevant to my determination of her credibility. Counsel admits that he has no knowledge of Ms. Pakulski’s criminal record and his asking the question is intended only to determine whether or not she has been convicted for an offence involving dishonesty. His inquiry is speculative. There is no suggestion of any relevant similar fact, nor any suggestion that what might be revealed in Ms. Pakulski’s answer will have any bearing upon the factual issues in the case. Counsel relies for his authority upon the provisions of the Ontario Evidence Act and on section 12(1) of the Canada Evidence Act:
A witness may be questioned as to whether the witness has been convicted of any offence, excluding any offence designated as a contravention under the Contraventions Act, but including such an offence where the conviction was entered after a trial on an indictment.
7The Ministry’s counsel argues that the details of Ms. Pakulski’s criminal convictions have no probative value for the determination of the issue in this case. Simply put, the remaining issue in the case is whether Ms. Pakulski worked for the employer for some days during November 1999 on a casual basis. Ms. Pakulski says she did; the employer says she did not. Although credibility is in issue, on the Ministry counsel’s submission, no adverse inference can be drawn from Ms. Pakulski’s criminal conviction(s), even if it (or they) were for an offence (or offences) involving dishonesty. Ministry counsel contends that the criminal record cannot impugn Ms. Pakulski’s credibility. In the Ministry counsel’s submission, the question of credibility should be determined solely from the evidence which is relevant to the determination of whether Ms. Pakulski worked for the employer in November 1999, and not from such extraneous material as her criminal record.
8In criminal proceedings counsel may question a witness as to whether he or she has a criminal record, as regards the identity of the crime(s), and as to “the substance and effect of the indictment, the place of conviction and the penalty” (Sopinka, Lederman & Bryant, The Law of Evidence in Canada, Second Edition, Butterworths, Toronto and Vancouver, June 1999, at 502, §10.81).
9I am not persuaded that the details of Ms. Pakulski’s criminal conviction or convictions have any relevance to my determination of whether she is telling the truth regarding her claim to have worked for the employer during November 1999. The standard for the admission of character evidence (such as employer counsel wishes to extract from Ms. Pakulski) is different in civil cases, such as this, from what it is in criminal cases. As stated in Attorney-General v. Radloff (1854), 10 Exch. 84, 23 L.J. Ex.240, 156 E.R. 366, at 371 (E.R.):
In criminal cases evidence of the good character of the accused is most properly and with good reason admissible in evidence, because there is a fair and just presumption that a person of good character would not commit a crime; but in civil cases such evidence is with equal good reason not admitted, because no presumption would fairly arise, in the very great proportion of such cases, from the good character of the defendant, that he did not commit the breach of contract or of civil duty alleged against him.
10Even if Ms. Pakulski were convicted of a crime involving dishonesty, that would not imply that she is being dishonest in this case, nor could I draw that conclusion. Her character is not the issue in dispute; her character is not on trial, nor should it be. What her criminal conviction or convictions might be has no probative value for the determination of the remaining issue in this case. The question of whether she worked in November 1999 will be determined from evidence other than Ms. Pakulski’s criminal record.
11In the circumstances employer’s counsel may not ask Ms. Pakulski for details of her criminal record.
Release of certain funds held in trust by the Director of Employment Standards
12The Employment Standards Officer, who investigated Ms. Pakulski’s complaint that she had not been paid certain money due to her under the Act, found that she was owed the sum of $988.52. To that figure was added the Ministry’s administration cost of $100, making a total of $1,088.52, which was paid into trust by the employer as a condition for pursuing this appeal.
13The sum of $988.52 consists of various amounts allegedly due by the employer to Ms. Pakulski: termination pay; vacation pay for 1999; wages for work in May, August and November 1999. The Employment Standards Officer found that Ms. Pakulski was constructively dismissed.
14What has become apparent during the course of the hearing is the following: Ms. Pakulski ceased to be a regular employee of the employer during May 1999; she quit her employment then; her claim to the Employment Standards Branch of the Ministry of Labour was filed on April 14, 2000.
15Pursuant to the provisions of section 82.3 of the Act, an employee may recover claims in respect of wages and termination pay within 6 months of the amounts being payable by the employer, failing which the claims are time barred and cannot be enforced.
Ms. Pakulski’s termination pay claim
16On her evidence, Ms. Pakulski quit her employment. She was therefore not entitled to termination pay. She is still under oath, testifying under cross-examination, and should her remaining evidence reveal that she was in fact constructively dismissed (as the Employment Standards Officer found) she would still not be entitled termination pay because her claim, filed on April 14, 2000, was made outside of 6 months from the date her employment ceased.
17Ms. Pakulski is therefore not entitled to termination pay. The Order of the Employment Standards Officer against the employer for payment of termination pay for Ms. Pakulski is to be set aside.
Ms. Pakulski’s wage claim for work in May and August 1999
18Like her termination pay claim, Ms. Pakulski’s claims for wages for work in May and August 1999 are time barred. She is not able to recover the amounts due from the employer. The Order of the Employment Standards Officer against the employer for payment of wages due to Ms. Pakulski for work done in May and August 1999 is also to be set aside.
The effect of the exclusion of Ms. Pakulski’s termination pay claim and her wage claims for May and August 1999 from possible amounts due to her
19What remains of Ms. Pakulski’s claims (those not time barred) are her claims for vacation pay for the period January to April 1999, amounting to $314.59; her claim for work done on a casual basis during November 1999 in the sum of $318.33, and 4% vacation pay on that amount, of $12.73. These figures amount to $645.65. With the Ministry’s Administration Fee, the total for which the employer could be held liable, in the event the Ministry and Ms. Pakulski are successful in this case, is $745.65.
20From the above it is clear that the amount currently held in trust by the Director of Employment Standards of the Ministry to cover the employer’s liability to Ms. Pakulski ($1,088.52) exceeds the employer’s maximum potential liability by $342.87. This is the amount which employer’s counsel has asked to be returned to the employer.
21Given that there is no prospect, on Ms. Pakulski’s claims, that the employer could be liable for an amount in excess of $745.65, I see no reason for the Ministry to continue to hold the additional sum of $342.87. That amount should be refunded to the employer.
Interim disposition
22In light of the above considerations and conclusions I make the following declarations and orders and I issue the following directions:
The Order of the Employment Standards Officer in this matter that the employer pay termination pay and wages in respect of work performed by Ms. Pakulski in May and August 1999 is set aside;
The Director of Employment Standards of the Ministry of Labour shall release the sum of $342.87 to the employer from monies held in trust in respect of this matter;
The hearing will continue on Thursday, September 13, 2001, commencing at 9:30 a.m. in the Board Room, 2nd Floor, 505 University Avenue, Toronto, Ontario.
Employer’s counsel may not ask Ms. Pakulski for details of her criminal record when her cross-examination resumes.
“Christopher J. Albertyn”
for the Board