Karen Stevenson v. The Outsourcing Connection, The Creditrace Connection, and Ministry of Labour
Employment Practices Branch File No.: 30-014778 Date: November 22, 2001 Ontario Labour Relations Board
Before: David A. McKee, Vice-Chair.
Decision of the Board
1This is an application for a review of a decision of an employment standards officer pursuant to section 68 of the Employment Standards Act, R.S.O. 1990 ch. E-14 ("the Act"). This decision is the final decision in this application. The only remaining issue is whether the applicant ("Stevenson") was terminated by the responding party ("Creditrace"). If Creditrace did terminate her employment, it did so without the notice required by section 57(1)(a), and is therefore obliged to pay Ms. Stevenson one week's pay plus vacation pay (in this case $400.00). Creditrace states that it did not pay her termination pay as she resigned. Ms. Stevenson states that she resigned for reasons that constitute constructive dismissal on the part of Creditrace.
2Section 58(1) defines termination to include a wrongful dismissal. The question then is whether Creditrace breached the employment contract with Ms. Stevenson in so fundamental a manner as to constitute a repudiation of the contract. In my view, Creditrace did.
3Creditrace may have had some concern about the late arrival or early departure of Ms. Stevenson. However, it did not attempt to discharge or discipline her for these alleged shortcomings. In any event, the only evidence I heard on this subject was that of Ms. Stevenson, whose evidence was that she was rarely late, and when she was, she remained for the full eight hours of her shift. No evidence was led to the contrary.
4Creditrace did not pay Ms. Stevenson the correct amount of wages for a number of weeks, and did not pay her holiday pay to which she was entitled. Further, no adequate explanation was forthcoming until the very end of her employment. It was only when she was advised that she would not be paid money she was owed, notwithstanding an agreement that she could start at 9:00 a.m. and work through her breaks, that she submitted her resignation. The actions of Creditrace were therefore in breach of the statute, and of the contract of employment itself. The wage bargain is fundamental to an employment contract. I find for these reasons that Creditrace constructively dismissed Ms. Stevenson.
5Since Creditrace terminated the employment of Stevenson, it is obliged to pay her one week's termination pay pursuant to section 57(1)(a). This amount, including vacation pay, is $400.00. I was advised at the hearing that the earlier order, contained in the decision of October 16, 2001, directing Creditrace to pay to Ms. Stevenson the sum of $240.40, had not yet been complied with. Accordingly, the full amount owing to Ms. Stevenson from Creditrace is $640.40.
6This is an appropriate case to award the payment of interest on this amount. The employer ought not to profit from its unlawful withholding of wages over a 13-month period. The rate of interest set by the Bank of Canada on October 10, 2000 was 7.25%, or $52.64 to the date of the hearing.
7The total of $693.04 is a "lump sum" payment as defined by section 103(4) and (6) of the Income Tax Act Regulations (CRC Ch. 945 as amended). Accordingly, the withholding tax required by section 153 of the Income Tax Act itself is that defined in subsection 103(4)(vi) of the regulations, being 200/273 of 10% of the total amount owing. The Board therefore directs the responding party, The Creditrace Corporation, to pay to Karen Stevenson the sum of $642.27 and to remit the remaining $50.77 to the Canada Customs and Revenue Agency.
"David A. McKee"
for the Board