Danielle Henzel v. Hawk Lake Lodge and Ministry of Labour, 2001 CanLII 7862

Danielle Henzel v. Hawk Lake Lodge and Ministry of Labour

1100-99-ES Danielle Henzel, Applicant v. Hawk Lake Lodge and Ministry of Labour, Responding Parties.

Employment Practices Branch File No.: 13 002459

BEFORE Timothy W. Sargeant, Vice-Chair.

APPEARANCES: Danielle Henzel, Patty Reid and Ian Weibe for the applicant; Sandy Delton for the responding party; Robert Sinding for the Ministry of Labour

DECISION OF THE BOARD; June 26, 2001

1. This is an employee appeal filed pursuant to the Employment Standards Act, R.S.O. 1990 e.E-14 as amended, (the “Act”).

2. At the hearing the representative of the responding party employer (“the Lodge”) asked for an adjournment as the hearing had not commenced until 1:00 p.m. due to travel difficulties of the Chair. The representative had been notified of this change in hearing time prior to the hearing date. In any event often two or more matters are scheduled for the same day and there is no assurance that any one particular matter will commence at 9:30 a.m. The Chair was prepared to sit until the matter was completed. The representative of the employer however indicated for business reasons she could not remain. The applicant was opposed to an adjournment as she had travelled from Winnipeg and brought witnesses with her. In such circumstances the Chair was not prepared to grant an adjournment. The representative of the employer was advised the hearing would continue, and in the absence of the representative of the employer the evidence of the applicant would be the only evidence before the Chair.

3. The appeal involved the assessment made by an Employment Standards Officer in calculating wages for work performed by Ms. Henzel as a student in the months of May, June, July, August and early September of 1998.

4. Ms Henzel testified that she would mark her hours of work on a sheet provided by the employer at the end of a work period. Ms. Henzel worked as a server in the restaurant portion of the employer. Essentially she would start at 6:30 a.m. and work to at least 12:00 p.m. (often longer), have several hours off and then return to work at 5:00 or 6:00 p.m. and work till around 9:00 p.m.

5. Essentially three issues were involved in this appeal:

(a) four dates on the time cards in which Ms. Henzel testified that the time had been altered;

(b) the fact that in the calculations the Employment Standards Officer had assumed an unpaid 15 minute break was taken essentially for each day Ms. Henzel had worked; and

(c) the submission that the Employment Standards Officer had made a mistake on the assessment work sheet in including in income received, $945.00 paid to Ms. Henzel as a partial refund on room and board costs deducted by the employer during the working period.

6. Dealing with the first issue I am satisfied that on May 23, May 24, May 28 and July 26, 1998 the times on the reporting sheet have been altered without the approval of Ms. Henzel. As the employer representative had withdrawn there is no explanation for such alterations. I therefore accept the evidence of Ms. Henzel and increase the hours of work on May 23, 1998 by 2 hours, on May 24 by 2 hours on May 28 by 2 hours and on July 26, 1998 by fifteen minutes. Counsel for the Ministry fairly took no position on this issue, submitting that it was for the Chair to determine the credibility of the evidence.

7. Dealing with the second issue it was the evidence of Ms Henzel supported by two other witnesses that Ms. Henzel did not have the benefit of a 15 minute unpaid break during her shift worked as a server. The testimony was consistent that there were only two servers who were extremely busy serving upwards of 20 (and in peak seasons of July and August 34 to 40) patrons for breakfast and dinner. With the preparing, serving and cleaning up there was just no time to take such a break, and in fact the cooks would press the servers to continue to keep working. The testimony was that the Lodge was understaffed. Again this testimony is unrebutted. The Ministry counsel again took the position that the onus was the applicant to show how the assessment was incorrect, but left it to the Chair to determine whether considering the evidence, the Chair felt that such onus had been met. It was conceded by Counsel for the Ministry that the Employment Standards Officer had for the most part calculated on the assessment a fifteen minute unpaid break. I am of the opinion that the onus has been met. The testimony of the witnesses on this point is unrebutted. Having review the records I have therefore determined that an additional 15 minutes of working time should be added to the following days in 1998:

May 23, 24, 25, 27, 28, 29, 30, 31;

June 1, 2, 4, 5, 6,7 ,8 10, 12, 13, 14, 15, 17, 18 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29;

July 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 15, 16, 17, 18, 19, 22, 23, 24, 25, 26, 27, 29, 30, 31;

August 1, 2, 3, 4 , 5, 6, 7, 8, 9, 13, 14, 15, 20, 21, 22, 23, 25, 26, 27, 28, 20, 30;

September 1, 2, 3 and 4

8. In regards to the third issue counsel for the Ministry argued strenuously that the Employment Standards Officer was correct in including as income the $945.00 given to Ms. Henzel as a partial refund of her room and board deductions. The testimony was that the employer had promised to refund essentially half of the room and board costs if a student worked the entire summer season. This was part of the written contract of employment. Ms. Henzel argued that such refund was not involved in productivity and therefore should not be considered as wages and should not have been included in the Employment Standards Officers assessment as an amount paid. I agree with the submissions of counsel for the Ministry that under the Act such payment is clearly within the definition of “wages” in section 1 of the Act. I therefore find that the Employment Standards Officer was correct in including this amount in the calculations as income earned by Ms. Henzel.

9. As a result of the above determinations I have determined that for the pay period ending May 29, 1988 seven and one half (7-1/2) hours of overtime should be added; for the period ending June 5th; one and one half (1-1/2) hours of overtime should be added; for the period ending June 12; one and one quarter (1-1/4) hours of overtime should be added; for the period ending June 19, one and one half (1-1/2) hours of overtime should be added; for the period ending June 26, one and one half (1-1/2) regular hours should be added; for the period ending July 3, one and one half (1-1/2) regular hours should be added; for the period ending July 10, one and one quarter (1-1/4) regular hours should be added; for the period ending July 17, one and one quarter (1-1/4) regular hours should be added; for the period ending July 23, one (1) regular hour should be added; for the period ending July 31, two (2) hours of overtime should be added; for the period ending August 7, one and three quarters (1-3/4) hours of overtime should be added; for the period ending August 14, one (1) regular hour should be added; for the period ending August 21, three quarters (3/4) of an hour of regular time should be added; for the period ending August 28, one and a half (1-1/2) hours of overtime should be added; and for the period ending September 4, one and one half (1-1/2) hours of overtime should be added.

10. In summary eight and one quarter (8-1/4) hours of regular time at the rate of $7.00 per hour and eighteen and one half (18-1/2) hours of overtime at the rate of $10.50 per hour should be added to the Officer’s assessment. This would add a total of $252.00 to the Officer’s assessment. This would mean the total amount earned in the relevant period would be $6,516.15. Vacation pay on such amount at 4% would be $260.65. The amount actually paid by the employer was $6,183.31 and for vacation pay was $233.94. The difference is thus $359.55 [$332.84 ($6516.15 - $6,183.31) plus $26.71 ($260.65 - $233.94)]. On the original Assessment made by the Employment Standards Officer the employer paid an additional $84.07 which should be deducted from the $359.55 owing to Ms. Henzel.

DECISION

11. The Board thus orders the responding employer to pay Ms. Henzel the amount of $275.48 forthwith.

“Timothy W. Sargeant”

for the Board