Decisions

Director or officer under the BC Employment Standards Act

Jul 24, 2002

Section 334 of the Company Act provides, inter alia, that it is an offence to make misleading statements in an annual return. I find it difficult to accept that a person, who purports to provide consulting regarding corporate structuring, who provides registered and records office for some 20-30 companies, and who does regulatory filings for such companies, reasonably believed he could limit his liability by being secretary only for the purposes of filing the annual return. This does not make any sense. There is no dispute that he prepared the return and that he described himself as the corporate secretary. In the circumstances, I do not accept the defence that Mr. Cully was not properly appointed secretary. Mr. Cully represented himself as a consultant to public companies dealing with corporate structuring and regulatory filings. His office was the registered and records office. As the secretary, it is his responsibility to “keep or cause to be kept” the records of the company. If he failed, for whatever reason, to record his appointment as secretary, I think he cannot now take advantage of that failure. It cannot be seriously argued that this is one of the “rare and exceptional” cases contemplated by the Michalkovich decision. There is no dispute that Mr. Cully was listed as a “secretary” at the relevant times. Despite his protestations, there can be no doubt that a “secretary” is an officer under the Company Act. He was, on the available facts, an officer and, thus, liable as such.

Reconsideration – BC Employment Standards Act

Jun 24, 2002

In summary, because of the appeal process itself, because of the documentation of meetings and correspondence between the District and the Delegate, and because of the expectations for ‘response’ detailed in previous Tribunal decisions, we believe that the Adjudicator erred when he decided that the employer was not provided with a “reasonable opportunity to respond”.

Lawyer Awarded Costs against Union – ILWU loc. 514

May 30, 2002

The union argued that because of the Federal Court decision the fees at issue in this review would not be payable because the order of the board was set aside. This argument ignores the fact that at the time the fees were incurred there was a validly existing board order. If the union had wished such an order it should have requested it. Secondly, the Federal Court decision does not affect the union’s right, if any, to pursue Mr. Harris for any of the costs incurred on his behalf. Therefore the Registrar found that the union is obligated to pay Mr. Petersen’s account which was agreed upon at $12,513.40.

Employee Status – Management – BC Employment Standards Act

Apr 24, 2002

While I accept that the foremen, such as Mr. Esquivel, Mr. Lopes and Mr. Vieira, were involved in hiring, firing, discipline, authorizing time off, sending employees home etc., on balance-and, in particular, considering the evidence of Mr. Silva’s role in the running of the business vis-a-vis that of the foremen, however, and considering the purposes of the Act, I do not accept that the foremen exercised “power of independent action, autonomy and discretion” or that they had “the authority to make final decisions.” In my view, Mr. Silva was the person who had the power to make final decisions. He, and not the foremen, exercised “power of independent action, autonomy and discretion.” Mr. Silva generally put together the crews based on his knowledge of the group of core employees. He determined which crews was suitable for which projects. He set up the work and work schedules. He provided relatively detailed instructions to the foremen as to the work that needed to be done through the “job descriptions.” Mr. Silva attended the job site once or twice a day and remained in contact with the foremen via two-way radios. Through the radios, the foremen could communicate any problems on site to Mr. Silva, including staff requirements. Mr. Silva agreed that he was “hands on” (though he was not present “every minute of the pour.”)

Pay for travel time or time between jobs

Feb 23, 2002

Employees should be given credit for that time as if were “worked”. Such time is likely to include travel time from one job to the next, getting ready for the next job, delays and other factors that invariably “sneak” into any schedule, etc.

Feb 23, 2002

In the circumstances, upon my review of the evidence, I am satisfied that Pineda intended to leave her employment on August 25, 2000, the subjective element of the test, and that she did not return, the objective element. All the same, this is not the end of the matter because the real issue is whether Pineda, as she alleged, was “forced” to quit due to the conduct of the Ardats or their children.

Claim for or unpaid wages, unauthorized deductions, vacation pay and compensation for length of service.

Jan 18, 2002

Commissions Owed

Dec 23, 2001

First, there is nothing on the face of the agreement to support the Employer’s argument that last sentence in the termination provision-”that no commissions will be paid on any sales closed after [the employee’s] termination of employment with BWI”-applies to circumstances where employment is terminated at the employee’s instance. The provision does not expressly deal with that. Second, the provision in dispute deals, in some detail, with the Employer’s obligations should it terminate the employee, for cause or otherwise. It the parties had intended the provision to mean what the Employer now argues it means, the parties could have provided for that in their agreement. The agreement was drafted by the Employer. Third, although this point was not argued before me, I note that the agreement on its face states that it “contains the entire agreement [between the parties] with respect to [the employee’s employment…” It is, therefore, somewhat ironic that the Employer now seeks to rely on pre-contractual representations as an aid to interpretation. In any event, in my view, at the very least, the provision in question is ambiguous and the principles of construction of contracts apply. In short, I agree with the Delegate’s conclusions.

Application to protect and keep confidential certain information

Dec 18, 2001

Employer failed to cooperate with Employment Standards Branch investigation.

Nov 18, 2001

No reasonable explanation of why the Employer did not cooperate with the investigation. Section 122 of the Act provides, inter alia, that a Demand is “deemed” served if it is “sent by registered mail to the person’s last known address.” There can be no argument that the Demands were not properly served. In my view, the Employer had ample opportunity to provide information and documentation. The issues raised by the Employer’s appeal on the merits-such as entitlement to overtime wages and vacation pay — could have been addressed in the investigation. I will not allow the Employer to raise these issues at the appeal level.

Associated companies under the BC Employment Standards Act

Sep 23, 2001

The only link between the hotel and the restaurant, apart from the arms length landlord-tenant relationship, is the fact that Hardeep Malik co-signed cheques, including paycheques, for the restaurant. The uncontradicted evidence was that Hardeep Malik co-signed cheques when one of the two partners were not present and that he did so as a favour to one of the partners, a longtime friend. His signing authority could be taken away at any time. He did not sign all cheques for the restaurant; some cheques were signed by the two partners in the restaurant. He never refused to sign cheques presented to him for signature. He explained that he would only question cheques if they were for large amount or they were made out to one of the partners. The signing of cheques had nothing to do with his employment at the hotel.

Did the Employer recall employee to employment after her maternity leave?

Sep 18, 2001

The real disagreement between Coupal and Verheul was whether the recall was supposed to be in January or April 2000. If there was an agreement that Coupal would return to work in January (as is Coupal’s position) or April (as is the Employer’s position), and the Employer failed to return her to work under that agreement, Coupal, arguably a claim to compensation for length of service would arise, either as of the date agreed or 13 weeks after the failure to recall (Section 63(5)). However, on the facts of this case, there was no “lay-off,” i.e., at the will of the Employer, rather there was a mutual agreement that Coupal did not have to come to work until January.

Bias – Appearance of Bias – Compensation for Length of Service – Employment Standards Act

Aug 23, 2001

The Employer raises serious allegations of bias and abuse of process on the part of this delegate. These allegations have not been refuted. Therefore, in order to avoid any apprehension of bias, the investigation must be carried out by a delegate other than the delegate who issued the original Determinations. As well, the investigation must be carried out on an expeditious basis. To avoid further delay to the parties, the investigation must be completed within a reasonable time from the date of this decision. In the circumstances I consider 30 days reasonable. If more time is required, I expect the parties to make written submissions to the Tribunal in that regard.

Termination of the grievor for not following directions from management and causing disruption of workers during their work times

Feb 15, 2001

Compensation for Length of Service

Dec 23, 2000

Despite having requested a “short extension,” the Employer does not provide the requested reasons and documents. The Determination is issued about a month and a half after the Employer has requested a “short extension.” It cannot be argued that the delegate “rushed’ to issue the Determination after the Employer failed to meet his last deadline — July 14, in the letter, the Employer’s in-house counsel says she did not see (and there is nothing before me to contradict that).

Conflict of Interest – BC Employment Standards Act

Oct 1, 2000

Clearly, the employer had reason to be concerned about conflicting loyalties of these four employees-for example, when prospecting for potential customers, or indeed, when dealing with existing Unisource customers, would these employees prefer the interests of Unisource or their new employer? In my view, Unisource was not obliged to, in effect, place these four employees under close supervision in order to determine if, in fact, these employees were breaching confidences or otherwise harming the pecuniary interests of Unisource. And even if Unisource had placed these employees under close supervision, there is no guarantee that any wrongful disclosures would have been uncovered-e.g., the disclosure may have taken place off the job. It is precisely because of the inherent difficulty of detecting such wrongful disclosures that the law does not require an employer to prove actual wrongful disclosure in order to have just cause for dismissal-the significant fact that the employee stands in a conflict of interest is legally sufficient.”

Appeal of Wages

Aug 23, 2000

Toews was hired for training by the Employer for the Employer’s business (see Section 1 “employee”). Whether or not there was an agreement that Toews was not going to be paid is immaterial. Such an agreement is contrary to Section 4 of the Act which provides that “an agreement to waive [the minimum requirements of Act ] is of no effect”. As such, he is entitled to wages. In this case, as stated by the delegate, there was no agreement with respect to the rate of pay and the minimum pay rate applies.

Dispatch Lists – BC Labour Relations Code

Jul 23, 2000

Jurisdiction of the Director of Employment Standards

Jun 23, 2000

From my review of the facts in evidence, set out above, and applying the “sufficient connection” test set out in Can-Achieve, above, I agree with the delegate’s determination that Sorenson and Kao were employees for the purposes of the Act. I agree that the Act applies. First, Amber’s main place of business was in British Columbia. Second, the Employees’ residence prior to and during the assignment to the Greenheck project was British Columbia and they returned to the province regularly during their assignment. Third, at the material time, they performed work in Wisconsin and in British Columbia, both in relation to the Greenheck project and, importantly, in relation to other Amber customers. Fourth, the Employees had a longstanding relationship with Amber prior to the Greenheck project, whether viewed as an employment relationship or not. There can be little doubt on the evidence that Sorenson and Kao were employees during the time they worked for Amber in Wisconsin. In the result, I agree with the Determination on this point.

Employee did not resign – he was fired

Feb 23, 2000

Both the common law courts and labour arbitrators have refused to rigidly hold an employee to their “resignation” when the resignation was given in the heat of argument. To be a valid and subsisting resignation, the employee must clearly have communicated, by word or deed, an intention to terminate their employment relationship and, further, that intention must have been confirmed by some subsequent conduct. In short, an “outside” observer must be satisfied that the resignation was freely and voluntarily and represented the employee’s true intention at the time it was given.