3215-00-ES West Property Services, Applicant v. Wayne Brady and Ministry of Labour, Responding Parties.
Employment Practice Branch File No. 61005192
BEFORE: Caroline Rowan, Vice-Chair.
APPEARANCES: Dave West for the applicant; Wayne Brady on his own behalf; Karima Chatur for the Ministry of Labour.
DECISION OF THE BOARD; October 19, 2001
This is an application under section 68 of the Employment Standards Act, R.S.O. 1990, c.E-14, as amended (the “ESA”) for review of an Order to Pay in the amount of $230.94 (inclusive of a $100 administration fee) filed by the applicant, West Property Services. The Order to Pay in issue relates to unpaid vacation pay and six (6) hours of wages (relating to a training period on December 21, 1999) found to be owing to the claimant, Wayne Brady.
The Employment Standards Officer determined that Mr. Brady was owed $58.94 in outstanding vacation pay based on four (4) percent of the claimant’s total earnings of $1,473.60. The officer also assessed that the claimant was entitled to $72.00 in unpaid wages for a six hour period of training calculated at a rate of $12.00 per hour.
Mr. West, who testified on behalf of the applicant, did not dispute that the applicant owes Mr. Brady an amount for both vacation pay and for wages relating to a period of training. He disputed the amount assessed by the officer to be owing to Mr. Brady.
Mr. West contended that the amount assessed should be reduced to reflect the fact that the training period in issue was two and a half (2½) hours rather than six (6) hours and to take into account that Mr. Brady was inadvertently incorrectly paid at a rate of $12.00 an hour throughout the period of his employment. He noted that Mr. Brady worked for the applicant as an on-call snowplough operator from on or about December 21, 1999 to the end of March 2000 pursuant to a written contract of employment between them signed on or about December 21, 1999. He stated that that contract stipulates that Mr. Brady’s hourly rate of pay is $11.75, not $12.00. Mr. West explained that it was only after the termination of Mr. Brady’s employment that he became aware of the error. Mr. West noted that the difference between the parties’ respective positions as to the amounts owing is in the range of approximately $50.00.
Mr. Brady, on the other hand, testified that the agreement he entered into with the applicant in or about December 1999 was to be paid $12 /hr, not $11.75. As such, he disputed that he was incorrectly paid during the period of his employment. Mr. Brady also maintained that the training period in issue was, in fact, of a six hour duration, not two and a half hours as contended by Mr. West.
In assessing the disputed evidence and arriving at my findings of fact, I have considered all of the evidence and have taken into account such factors as the demeanour of the witnesses, the clarity of their evidence, the witnesses’ apparent ability to recall events and to resist the tug of self-interest in their responses to the questions, and what seems most reasonable and probable in all of the circumstances having regard to the evidence as a whole.
Decision
The applicant has the onus of establishing on a balance of probabilities that the Order to Pay should be varied. Having carefully considered the evidence of Mr. Brady and of Mr. West, the Board is not persuaded that the amount of the Order to Pay should be varied as requested by the applicant for the reasons that follow.
The Board prefers Mr. Brady’s evidence to that of Mr. West to the effect that the agreement between them was that Mr. Brady would be paid $12.00 per hour rather than $11.75 and to the effect that the training period in issue was of a six (6) hour duration, not two and half (2½) hours.
With respect to the hourly rate of pay, the Board firstly notes that it seems implausible that Mr. West would only have noticed the payroll error after the termination of Mr. Brady’s employment and only following the dispute that arose between them as a result of damage accidentally caused by Mr. Brady to one of the applicant’s vehicles.
In this respect, the Board notes that Mr. West testified that he signed Mr. Brady’s paycheques and that, prior to doing so, he reviewed the figures relatively carefully to ensure that all hours worked during the relevant period were included. The Board also notes that the sample pay stub introduced into evidence relating to Mr. Brady’s final pay period notes Mr. Brady’s rate of pay as being $12 per hour. Mr. West reviewed this particular pay stub in detail in or around March 2000 when Mr. Brady and Mr. West met to discuss the issue of compensation for the vehicle damage.
The Board also notes that the contract of employment between the applicant and Mr. Brady was not introduced into evidence. Instead, Mr. West provided an unsigned copy of the typed contract, which had been printed from his computer. Although that copy stipulated an hourly rate of $11.75, Mr. Brady maintained, and I accept, that when he was presented with that document Mr. Brady insisted on being paid an hourly rate of $12.00 and that Mr. West had agreed to his request and had as a consequence stroked out $11.75 by hand and written in $12.00 per hour.
However, even if the Board were to accept Mr. West’s oral evidence that the original signed contract reflects the amount of $11.75 an hour, the Board considers Mr. Brady’s explanation that that amount was revised upward by $0.25 at or around the time he commenced employment to be more consistent with what is likely in all of the circumstances. As previously noted, it seems implausible that Mr. West would have only discovered the alleged error in or around June 2000 after the dispute between them over the vehicle damage arose.
With respect to the training period on December 21, 1999, the Board is also not persuaded that the applicant has discharged its onus of establishing that the time worked by Mr. Brady that day was less than six hours. Mr. West testified that he spent half an hour with Mr. Brady that day and that Mr. Brady spent the remaining two hours of training with Mr. Weber, one of the applicant’s employees. During this time, Mr Weber and Mr. Brady drove around to the various sites in an effort to familiarize Mr. Brady with them.
The applicant did not, however, call Mr. Weber as a witness to dispute Mr. Brady’s direct evidence that he worked a total of six hours that day, that is, half an hour with Mr. West and a further five and a half hours with Mr. Weber driving around to the various sites. While I accept Mr. West’s suggestion that a six hour training period is unusually long in the applicant’s experience, the Board is not satisfied, having regard to the evidence before it, that the officer’s determination that the claimant worked six hours that day is incorrect.
DISPOSITION
- For all of these reasons, the Order to Pay in issue is hereby affirmed. The Board directs the monies held in trust including interest accumulated thereon, less the statutory administrative costs, be paid to the claimant, Mr. Brady.
“Caroline Rowan”
for the Board