IN THE MATTER OF AN APPEAL UNDER THE CANADA LABOUR CODE BETWEEN: Vancouver Wharves Ltd., Appellant AND: Randy Walter, Respondent

Judgment: December 4, 1997

Docket: YM2727-478

I.S. Petersen:

 

Introduction

 

1      This is an appeal under Section 251.11 of the Canada Labour Code (the “ Code”). Part III. Vancouver Wharves Ltd. (”Vancouver Wharves”) is appealing a June 10, 1997 order and determination, set out in a letter dated June 11, 1997, by an Inspector that vacation pay was owing by Vancouver Wharves to Mr. Walter.

 

Facts

 

2      The facts are straight forward and are not in dispute between the parties. The facts are briefly set out below.

 

3      Mr. Walter was employed as an operations timekeeper, or operations planner, by Vancouver Wharves between February 21, 1984 and July 24, 1996, when he resigned. The employer operates seven days a week, 24 hours a day. There were two full-time timekeepers at all material times. During his employment Mr. Walter regularly worked seven days at straight time with the following seven days off. Apart from an initial period, when he worked eight days followed by six days off, this arrangement did not change during his employment. In effect, Mr. Walter worked approximately 26 weeks per year with 26 weeks off, but was paid for 52 weeks.

 

4      Mr. Walter candidly agreed that the arrangement set out above was agreed between the parties when he commenced his employment. Moreover, the arrangement was documented in his personnel file. An October 1, 1985 memorandum concerning Mr. Walter’s vacation entitlement stated: “(i)ncluded in his 26 weeks’ absence from work is his annual vacation entitlement, whether it be 15, 20, 25 or 30 days.” In a March 14, 1994 memorandum to management, Mr. Walter acknowledged that vacation days were included in his days off.

 

5      As well, the two timekeepers could take longer periods off from work, usually not less than 21 days, by mutual arrangement between themselves and subject to departmental approval. Because of this arrangement, a timekeeper would work 21 straight days without any days off from work when the other timekeeper was on vacation. A documents prepared by the employer indicated that Mr. Walter had not less than 21 straight days off from work in each year of 1994, 1995 and 1996. The employer did not properly record time off as vacation time. Mr. Walter readily agreed that he took extended periods off from work for vacation purposes.

 

6      In a letter dated June 11, 1997, the Inspector determined that the vacation time was owed and issued an order to pay for vacation time owed for three years, between 1993 and 1996, a total of $5,484.35. This amount allowed for a payment of $2,824.42 paid to Mr. Walter on account of vacation pay at the time of resignation. The employer did not have any explanation as to why Mr. Walter was paid vacation pay at that time. The calculation of the amount is not in dispute in these proceedings.

 

Argument

 

7      The Appellant argues that the fact that the employer did not properly record the vacation taken by Mr. Walter, does not mean that he did not have time off for vacation. Mr. Walter took the vacation in accordance with the requirements of the Code. Moreover, the employer argues that the remedy issued by the Inspector for vacation pay in the circumstances is punitive.

 

8      The respondent argues that while he did agree to the arrangement during his employment, he did so on the basis of not being aware of the requirements of Code.

 

Analysis and decision

 

9      Other issues flowing from the employers arrangement, such as hours of work, statutory rest periods, and statutory holiday pay, are not before me. The issues are, simply put, whether the arrangement in place between the employer and the employee breached the Code and, if so, what remedy flows from such breach. As it will become apparent, it is not necessary for me to consider the latter issue.

 

10      Regulation 24(1)(g) obligates an employer to keep records of vacation dates. It is clear, and indeed admitted, that the employer did not properly record time off taken as vacation time.

 

11      Section 184 of the Code provides:

Except as otherwise provided by or under this Division, every employee is entitled to and shall be granted a vacation of at least two weeks with vacation pay and, after six consecutive years of employment by one employer, at least three weeks with vacation pay in respect of every year of employment by that employer.

 

12      Under the Code, Mr. Walter was entitled to three weeks’ vacation with pay based on his length of service. However, the Inspector decided that because the vacation was not recorded as such that it was not possible to verify that Mr. Walter did take vacation. The fact that the employer was in breach of the Code and the Regulations is a proper consideration for the Inspector. However, in my view, the Inspector must go beyond that and determine whether the employee did, in fact, take the vacation he was entitled to under the statute. Mr. Walter did agree that he did take time off for vacation. In the circumstances, I find that he did receive three weeks vacation with pay.

 

13      In the result, I order that the amount paid by the employer, together with such interest as may have accrued until this time, be returned to the employer.