It’s interesting looking back on how I used to write about this whole experience.I have all of the copies, of everything that I had given for the complaint. Work hours, work logs, personal diaries, counselor logs, signed witness statements from that very day. Somehow, in the trauma of everything, I had enough sense to keep track of things, and I’m very grateful for that.
“Ministry of Labour orders (the kennel) to pay $3,900 to former employee”
Ministry of Labour Ministère du Travail
REASONS FOR DECISION
Employment Standards Act, 2000
Claim Number: 701931382
Business Name: _________
Claimant Name: CHANTAL DOSTALER
Date Claim Filed: August 22, 2017
Standard(s) At Issue:
- Overtime Pay 2. Vacation Pay/Vacation Time 3. Public Holidays/Public Holiday Pay 4. Termination Pay 5. Limits on Hours of Work 6. Reprisal By the Employer (which includes a Temporary Help Agency) 7. Other
Evidence, Decision and Reason(s) With Respect to Each Standard at Issue:
A claim was filed by Chantal Dostaler alleging a violation of S. 22(1) (overtime pay); S. 24(1) (public holiday); S. 54 (termination pay); S. 17(1) (Excess hours of work); and S. 18 (rest periods) of the Employment Standards Act 2000 (The Act). The claimant maintains she worked as guide earning a salary of $624.00 per week from November 1, 2016 until August 21, 2017.
The legal entity has been established as sole proprietorship owned by XXXXX doing business as XXXXX.
THE CLAIMANT’S POSITION IS AS FOLLOWS:
The claimant submitted the following as evidence: Initial claim submission with written statement Emailed written statement dated November 22, 2017 Copies of emails to and from employer relating to a day off taken in November 2016 Crisis line notes Medical note dated November 20, 2017 Written statement dated November 24, 2017
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Wage statements: 02/24/2017, 03/24/2017, 03/31/2017, 04/07/2017, 04/28/2017, 05/05/2017, 05/12/2017, 05/19/2017, 05/26/2017, 06/02/17, 06/09/2017, 06/16/2017, 06/23/2017, 06/30/2017, 07/07/2017, 07/14/2017, 07/21/2017, 07/28/2017, 08/04/2017, 08/18/2017, 09/01/2017 Timesheets April 2?, 2017; April 39, 2017; 1016 April, 2017; 1723 April, 2017; 2430 April, 2017; May 17; May 814, 2017; May 1521; May 22 29; May 30June 4, 2017; June 511, 2017; June 1219, 2017, June 2026, 2017; 27July 2, 2017, July 38, 2017, July 915; July 1622, July 2329; July 30August 5; August 612, 2017; August 1319, 2017; August 2026, 2017 WSIB 7 Employer report dated December 19, 2017 Written statement with WSIB report Screenshot relating to EI benefits Screenshot of employer’s Facebook post Work journal notes Copies of messages to and from XXXXXy; XXXX Scheduled trips for canoe/dogsled
The claimant alleges:
She often worked overtime without compensation. In the winter, the claimant maintain she worked between 2830 days per month. Some of the time, the claimant was paid a salary and then as contract worker. When claimant advised the employer she would complain to ESA, salary was re instated. The employer threatened the whole company would shut down. The claimant would work five 5.5 day trips and would work at the kennel one day. Salary would be deducted if more than one day off a week taken.
According to the claimant, she refused to take a 5 day canoe trip and asked to be reassigned and was terminated by the employer. The claimant advises she had been on several trips and due to the poison work environment did not feel up to the canoe trip. The claimant had requested alternate work but claims she was not up to taking responsibility for a tour and the guests.
The claimant called the employer to let them know she was “too tired” to take a guiding tour and was told “never to come back” and the employer hung up. The claimant called the employer back and was told essentially the same thing. A text was received advising the record of employment would be received and her shifts had been filled.
The claimant is seeking overtime pay, public holiday pay, termination pay and advises the employer exceeded the hours of work guidelines provided by the Act.
THE EMPLOYER’S POSITION IS AS FOLLOWS:
The employer submitted the following as evidence: Employer information form Proof of annual filing Master business license sole proprietorship for XXXXX legal name MXXXXX Record of employment for claimant for November 7, 2016 – November 21, 2016 – Change of ownership Record of employment for claimant for November 21, 2016 April 6, 2017 Shortage of work Record of employment for claimant for April 17, 2017 until August 21, 2017 Quit Cheque requisition forms and wage statements for Chantal Dostaler November 6, 2016 until August 27, 2017 Copy of unsigned contract for dog sled expedition guide Copy of Health form and Waiver for Chantal Dostaler dated December 7, 2015 Copy of XXXXX Waiver signed by Chantal Dostaler Dec 7, 2016 Summer Staff Scheduling
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Calendar for April, May, June, July, August 2017 Written Statement
The employer confirms the claimant’s employment with the record of employment submitted. According to the employer, the claimant was expected to work 5 days a week 7 hours per day and Sundays for 5 hours. One day off a week was provided. At the request of the claimant, the employer alleges the claimant was paid a salary of $600.00 per week for all hours worked. According to the employer, the claimant refused to go on a canoe trip scheduled for August 26, 2017. The claimant quit and did not return to work indicated the employer in their statement.
The employer provided statements from various employees regarding the claimant’s work. A written warning was submitted but the employer advised the claimant quit before it was provided to her. FINDINGS:
- In the matter of overtime pay, a violation of S. 22(1) of the Act is found. It is a requirement under the Act that salaried employees be paid overtime at the rate of 1.5 times the regular rate of pay for hours worked in excess of 44 hours per week.
The claimant’s statement and records indicate on overnight guiding tours, the claimant worked “on average 14 hours per day”. The employee provided time sheets to support her claim. The employer provided no evidence of the hours worked by the claimant. On the balance of probabilities, the claimant’s evidence is accepted.
Time sheets provided by the employee with corresponding payroll from both parties indicate the following:
- May 1 – 7, 2017 worked 58 hours in a work week, paid salary for 40 hours
- July 1016, 2017 worked 77.25 hours, paid salary for 40 hours
- July 1723, 2017 worked 78.25 hours, paid salary for 40 hours
- July 2430, 2017 worked 55.25 hours, paid salary for 40 hours
- July 31August 6, 2017 worked 54 hours, paid salary for 40 hours
- August 7 13, 2017 worked 76.25 hours, paid salary for 40 hours
- August 1420, 2017 worked 72 hours, paid salary for 40 hours See worksheet for calculations.
Overtime pay found owing: $3,334.09
- In the matter of vacation pay, a violation of S. 35.2 of the Act is found. Due to the overtime pay owing, additional vacation pay is owed. See worksheet for calculations. (Vacation pay owing is reduced by overpayment of public holiday pay).
Vacation pay owing in the amount of $31.83.
- In the matter of public holidays, no violation of S. 24(1) of the Act is found. The records provided indicate public holiday pay was paid.
- In the matter of termination pay, a violation of S. 54 of the Act is found. Although the employer provided statements to indicate the claimant’s performance was at issue, no evidence was provided to indicate the claimant was guilty of wilful misconduct.
The employer alleges the claimant quit. According to the evidence provided by both parties, it is my finding the claimant refused to take a tour guide assignment. According to the employer, the claimant had stated she was too tired, even if she was provided two days off prior to taking the trip, The claimant stated she did not feel mentally able and was terminated by the employer. The
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claimant is found to be owed termination pay.
The claimant’s period of employment is deemed to be from November 1, 2016 until August 22, 2017, a period of more than three months, but less than one year. As per S. 57(1)(a), the claimant is owed one week of termination notice or as per S. 60(1) pay in lieu of notice based on the regular wages earned during the last twelve weeks of employment, excluding weeks with vacation time taken. The claimant earned a salary of $600 per week plus $24.00 vacation pay calculated at 4%.
Termination pay in the amount of $624.00 is found owing. See attached worksheet for calculations.
5 a. In the matter of hours of work, excess hours’ daily/weekly a violation of S. 17(1) of the Act is found. The employer did not provide proof of an agreement to work in excess of 8 hours per day. The employer has not made application to the Director of employment standards for an approval to exceed 48 hours per week. According to the claimant’s time sheets, several days exceeded 8 hours per day, and as stated above under the heading of overtime, several weeks exceeded 48 hours per week without an approval issued by the director of employment standards.
5 b. In the matter of hours of work, rest periods; a violation of S. 18(1) of the Act is found. The guiding trips, as indicated by the claimant required 14 hours per day and as a result did not provide at least 11 hours between shifts.
- In the matter of reprisal, no violation of S. 74(1) of the Act is found. The four step test was used to make this determination. Although the claimant advises she refused work because of being too tired, the claimant had not at the time of the termination exceeded the amount of hours in a workweek for week of August 21August 27, 2017.
- Step 1: Is the person alleged to have committed a reprisal the employer or a person acting on behalf of the employee’s employer?
- Answer: Yes, the person who is alleged to have committed a reprisal is the owner, Margaret Reid. This person meets the definition of employer under the Act.
- Step 2: Did the employer or person acting on behalf of the employer intimidate, dismiss or otherwise penalize or threaten to intimidate, dismiss or otherwise penalize the employee?
- Answer: Yes, the employer did dismiss the employee.
- Step 3: Did the employee engage in any of the protected activities set out in clause 74(1)(a) or was the employer required by a court order or garnishment to pay an amount owing to the employee over to a third party as described in clause 74(1)(b)?
- No the employee did not engage in a protected activity prior to the termination. A finding of reprisal must refer only to those protected activities under this Act or Regulations. The allegations relate to possible violations of other pieces of legislation.
- Step 4: Did the employer or person acting on behalf of the employer intimidate, dismiss or otherwise penalize or threaten to intimidate, dismiss or otherwise penalize the employee because he or she engaged in the protected activities described in clause 74(1)(a) or because of a situation described in clause 74(1)(b)?
- Answer: No, the employer did not dismiss the employee as a result of engaging in a protected activity under this Act.
- In the matter of other, this officer can only make a determination on matters in respect of the Employment Standards Act, 2000.
Total amount found owing to Chantal Dostaler: $3,989.92
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Action(s) Taken by Officer:
Order to pay Direct #XXXX has been issued to XXXXX in the amount of $3989.92. Payment must be received no later than 30 days from receipt of the order.
Jacqueline Morrish Employment Standards Officer #1114