1812-00-ES Branair Ltd., Applicant v. John Paul Betz and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 52006663
BEFORE: Laura Trachuk, Vice-Chair.
APPEARANCES: Mark Stone, Dan Salvarinas and David Morrison for the applicant; John-Paul Betz on his own behalf; Karima Chatur for the Ministry of Labour.
DECISION OF THE BOARD; May 11, 2001
1This is an employer request for review under section 68 of the Employment Standards Act (the "Act") of Order to Pay No. 58375.
2The applicant asserts that Mr. Betz is not entitled to termination pay under section 57 of the Act because he is covered by the "construction exemption" in Regulation 327(2)(e) which provides as follows:
- 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.
3The facts relevant to this application are not really in dispute. The applicant is in the business of supplying, installing and servicing heating, ventilation and air conditioning systems. Mr. Betz was employed as a service technician from May 9, 1995. He is a licensed refrigeration mechanic. On March 19, 2000 he was advised that he was being terminated as of March 24, 2000. He received two weeks pay in lieu of notice. The Employment Standards Officer rejected the applicant's claim that the above exemption applied and found that Mr. Betz was entitled to a further two weeks pay in lieu of notice under section 57 of the Act.
4The Board heard evidence from David Morrison, the applicant's vice-president operations and small jobs division, and from Mr. Betz. Mr. Morrison testified that Mr. Betz was employed to do repair and maintenance on heating and air conditioning equipment. The applicant provided the Board with all of the time sheets and the related invoices that were available for the work Mr. Betz performed in the 15 months prior to his termination. The records appeared to be quite, although not entirely, complete. The invoices and the testimony demonstrate that Mr. Betz performed his work at the "site" i.e. at the customer's premises as opposed to in the shop. (see Boyd v. Culliton Brothers Ltd. 1995 CanLII 7284 (ON CTGD), 13 C.C.E.L. (2d) 205) He sometimes did installation work on construction sites as well. He received most of his work orders through a dispatch system although he sometimes attended at the applicant's premises.
5Mr. Morrison testified that the majority of the work performed by Mr. Betz was repair and not maintenance. Mr. Betz disputes the characterization of some of the work performed as repair. He disputes Mr. Morrison's calculations and claims that the majority of the work he performed was maintenance. However, while the Board does not agree with the applicant's characterization of all the work performed, it finds that the majority of the work performed was repair. It "restored to working order a system which has ceased to function or has ceased to function economically". (see Francis H.V.A.C. Services Ltd. OLRB File No. 3214-98-G, June 12, 2000)
DISPOSITION
6The Board finds that Mr. Betz was employed in the "...repair...of... other works at the site thereof" and is therefore exempted by Regulation 327(2)(e) from the entitlement to termination pay under section 57.
7The Board therefore rescinds Order to Pay No. 58375 and directs that all of the monies held in trust, as well as the administration fee, be returned to the applicant with applicable interest.
"Laura Trachuk"
for the Board