ONTARIO LABOUR RELATIONS BOARD 0250-12-ES Susana Rivas ...
0250-12-ES Susana Rivas-Ortiz, Applicant v. Monica & Doug Tompkins and Director of Employment Standards, Responding Parties. Employment Practices Branch File No.: 70100054-7
BEFORE: Ian Anderson, Vice-Chair.
APPEARANCES: Gerry Pelletier and Susana Rivas-Ortiz appearing for the applicant; Doug Tompkins and Monica Tompkins appearing for the responding party; no one appearing for Director of Employment Standards.
DECISION OF THE BOARD: May 16, 2013
1. This is an application under section 116 of the Employment Standards Act, 2000. Susana Rivas-Ortiz applies for review of a decision of an Employment Standards Officer which declined to make an order to pay wages in her favour and, while concluding that she had been subject to a threat which was a reprisal contrary to the Act, declined to award her any compensation as a result. 2.
The facts are not in dispute unless noted.
3. Ms. Rivas-Ortiz was employed by Doug and Monica Tompkins as a caregiver for their two sons. While doing so, she lived in a basement apartment in the Tompkins’ home. The employment relationship commenced in 2007, at which time the boys were five and three years of age, and came to an end in 2012. 4. At the commencement of the relationship, Ms. Rivas-Ortiz and Ms. Tompkins signed a document headed “Live-in Caregiver Program” which originated from the federal government. The document sets out certain terms and conditions of employment. Of particular note given the issues in dispute between these parties that document provides for an hourly wage of $9.25 per hour, specifies that there will be 35 hours of work per week and gives the cost of room and board as $369.42 / month. There is a space for the signature of the employer and the signature of the employee. Above the signature of the employer, the document states: “I certify that the duties outlined above are accurate and correct. I will abide by provincial labour standards. I will provide a Record of Employment on termination of employment.” Above the signature of the employee, the document states: “I have read the undertaking and understand it.” 5. 2011.
Ms. Rivas-Ortiz filed her claim with the Ministry of Labour on November 24, Having regard to section 111(3.1) and (4), the relevant period of inquiry with
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6. As will become apparent, Ms. Rivas-Ortiz’s duties and hours varied depending on whether the school year was in session or the boys were on summer vacation. In addition, there were four or five weeks a year when the Tompkins would go away on vacation with the boys but Ms. Rivas-Ortiz continued to be paid the same amount even though the duties which she had to perform during these weeks were limited. The Tompkins state they took a global approach to compensating Ms. Rivas-Ortiz. That is, in their view she was overcompensated for the weeks during the school year and the weeks when they were away on vacation which more than made up for any under compensation for the summer weeks during which Ms. Rivas-Ortiz worked longer hours (and, as discussed further below, the weeks when she provided babysitting on Sunday or Monday nights). 7. The Act is concerned with providing minimum protection to the most vulnerable of workers. It does not permit the kind of global averaging adopted by the Tompkins. Rather, section 11(1) of the Act provides: An employer shall establish a recurring pay period and a recurring pay day and shall pay all wages earned during each pay period, other than accruing vacation pay, no later than the pay day for that period.
8. In this case, there is no dispute that the Tompkins established a bi-weekly pay period. Accordingly, the question to be determined is whether Ms. Rivas-Ortiz was paid all of the wages which she earned each pay period. 9. During the school year, Ms. Rivas-Ortiz would commence her work day at approximately 7:30 AM. Her duties at the start of her work day were directed to getting the boys on the school bus at 8:40 AM. She would make their lunches, see that they had breakfast and walk them to the bus stop. Her duties at the end of the work day were to meet the boys at the school bus stop at 4:20 PM, walk them home and see that they commenced their homework. One of Mr. or Ms. Tompkins would be home by 5:00 PM, at which time Ms. Rivas-Ortiz was free to go. Ms. Rivas-Ortiz had other duties which she performed over the course of the day. From Monday to Thursday, Ms. Rivas-Ortiz was also responsible for preparing the evening meal for the Tompkins. On Mondays she would shop for some groceries for the Tompkins (the Tompkins purchased major items on the weekends) and clean the house. On Wednesdays she would clean the boys’ bathroom. On Thursdays she would do the boys’ laundry. The Tompkins described these as Ms. Rivas-Ortiz’s “core duties”. 10. In addition, during the relevant time period Ms. Rivas-Ortiz testified that she did some other tasks during the day in the school year period. She testified that at the suggestion of Ms. Tompkins she “volunteered” at the children’s school distributing milk once a week for about an hour at a time. In fact she did not do this every week, as
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respect to a claim for wages and vacation pay owing but unpaid is November 24, 2010 until the end of her employment on April 24, 2012. During this period, Ms. Rivas-Ortiz was paid the gross amount of $615.00 per bi-weekly pay period. In addition she was provided with a private room and with board.
sometimes she was “busy”, but she estimates she did it three times a month. Ms. RivasOrtiz also “volunteered” twice to assist with pictures at the school, again at the suggestion of Ms. Tompkins. The Tompkins dispute these activities constitute work. Ms. Rivas-Ortiz also testified that during the relevant period she took one of the boys to the orthodontist once and to the dentist twice. 11. Ms. Rivas-Ortiz and the Tompkins disagree with respect to how long it took Ms. Rivas-Ortiz to perform the core duties and the additional duties. They also disagree as to whether or not she is deemed by O. Reg. 285/01 to have been performing work during the times in the day when she was not performing any duties. 12. Ms. Rivas-Ortiz testified that it took her most of every day, from 7:30 AM to 5:00 PM, to perform her assigned duties. She testified that there were at most two or three hours per day for three of the days in the week when she was not performing duties. In any event, Ms. Rivas-Ortiz claims that she was required to be in the Tompkins’ house at all times from 7:30 AM to 5:00 PM and was reprimanded on one occasion when Ms. Tompkins discovered that she was not in the house. (However, at another point she also conceded that she was free to leave the house provided she had her cell phone with her.) Accordingly, Ms. Rivas-Ortiz argues that she is deemed to have been performing work the whole day, whether or not she was in fact performing work. She relies upon section 6(1)(b)(i) of O. Reg. 285/01: 6. (1) Subject to subsection (2), work shall be deemed to be performed by an employee for the employer, (a) where work is, (i) permitted or suffered to be done by the employer, or (ii) in fact performed by an employee although a term of the contract of employment expressly forbids or limits hours of work or requires the employer to authorize hours of work in advance; (b) where the employee is not performing work and is required to remain at the place of employment, (i) waiting or holding himself or herself ready for call to work, or (ii) on a rest or break-time other than an eating period.
13. The Tompkins estimate that the core duties would have taken Ms. Rivas-Ortiz 23 hours per week. They claim that the balance of the time Ms. Rivas-Ortiz was free to come and go, subject only to the requirement that she be available by cell phone in case they needed to call her with respect to an emergency in relation to one of the boys. Ms. Tompkins agreed that there was one instance in which she was upset that she could not reach Ms. Rivas-Ortiz, but her recollection of that instance was that she was unable to reach Ms. Rivas-Ortiz on her cell phone and she told Ms. Rivas-Ortiz that she had to have her cell phone with her at all times, not that she had to be in the house. The Tompkins argue that the situation falls within the exception to section 6(1) of O. Reg. 285/01 set out in section 6(2):
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(a) is entitled to, (i) take time off work for an eating period, (ii) take at least six hours or such longer period as is established by contract, custom or practice for sleeping and the employer furnishes sleeping facilities, or (iii) take time off work in order to engage in the employee’s own private affairs or pursuits as is established by contract, custom or practice; (b) is not at the place of employment and is waiting or holding himself or herself ready for call to work.
14. In my view, the exception contained in section 6(2) of O. Reg. 285/01 applies. While it may have been the case that Ms. Rivas-Ortiz was required to be in the house at all times when the boys were younger, at the times relevant to this claim they were both in full time attendance at school. Thereafter, there is no reason why the Tompkins would have insisted that Ms. Rivas-Ortiz be in the Tompkins’ residence at all times during the school day, as long as she was available as required. Thus, I find Ms. Tompkins’ evidence with respect to the incident described more plausible that that of Ms. RivasOrtiz. Further, and in any event, as noted Ms. Rivas-Ortiz gave conflicting evidence on this point, conceding at another point in her evidence that she was free to come and go. 15. The question is, therefore, how many hours Ms. Rivas-Ortiz worked during the day each week during the school year. Ms. Rivas-Ortiz claims that she worked 8.75 hours during the hours of 7:30 AM and 5:00 PM each day, for a total of 43.75 hours per week. However, as noted, she also conceded that on three days a week she had two to three hours of free time. Therefore on her evidence she worked between 37.75 and 34.75 hours per week. The Tompkins conceded that they have no direct knowledge of how many hours Ms. Rivas-Ortiz worked during any given day. Their estimate of 23 hours per week is based upon attributing time to the performance of the various tasks which Ms. Rivas-Ortiz performed on various days. Thus, on Mondays they estimate that she worked 3 hours in the morning (from 7:30 to 10:30 AM) and 2.5 hours in the afternoon (from 2:30 to 5:00 PM); on Tuesdays they estimate that she worked 1.5 hours in the morning (7:30 to 9:00 AM) and 2.5 hours in the afternoon (2:30 to 5:00 PM); on Wednesdays 3 hours in the morning (7:30 to 1030 AM) and 2.5 hours in the afternoon (2:30 to 5:00 PM; on Thursdays 3 hours in the morning (7:30 to 10:30 AM) and 2.5 hours in the afternoon (2:30 to 5:00 PM); and on Fridays 1.5 hours in the morning (7:30 to 9:00 AM) and 1 hour in the afternoon (4 to 5 PM). 16. In my view, it is appropriate to use 35 hours a week for the following reasons. First, it is consistent with the only direct evidence which I have on this point, that of Ms. Rivas-Ortiz. Second, it was the amount originally agreed upon in the contract. Although questioned repeatedly on this point, Ms. Tompkins was unable to identify a
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(2) Work shall not be deemed to be performed for an employer during the time the employee,
direct discussion with Ms. Rivas-Ortiz in which she was told that her expected hours of work were being reduced from 35 per week to 30 per week. If Ms. Rivas-Ortiz was expected, as I find, to be at work for 35 hours per week it is irrelevant whether or not she actually performed duties for all of those hours: it is an employer’s obligation to assign duties, not an employee’s obligation to find them. 17. During the eight weeks in the summer when the boys were not in school, Ms. Rivas-Ortiz was responsible for looking after the boys as well as her other duties. Her work day would commence at 8:00 AM and end at 5:00 PM. Allowing half an hour for lunch, she worked 42.5 hours a week during these weeks. The Tompkins testified that on five days during the summer, Ms. Tompkins’ mother took the boys for the day. Ms. Rivas-Ortiz testified that on all but one of those days she went with them. The evidence with respect to the other day was non specific both as to timing (i.e. whether it occurred during the relevant period of time) and as to whether or not Ms. Rivas-Ortiz was given other duties to perform on that day or otherwise hold herself available to work. Accordingly, I make no adjustment for the days on which Ms. Rivas-Ortiz went with Ms. Tompkins’ mother and the boys. 18. As noted, there were also four or five weeks a year when the Tompkins would go away on vacation with the boys. Some of these weeks were during the summer vacation period, some were not. Ms. Rivas-Ortiz continued to be paid the same amount during this time. Ms. Rivas-Ortiz suggested that she was required to stay in the house while the Tompkins were away. While I am prepared to accept that the Tompkins indicated to her that they wanted her to watch the house while they were away, it is important to recall that Ms. Rivas-Ortiz’s apartment was in the basement of the house. There is simply no reason why the Tompkins would have insisted that Ms. Rivas-Ortiz stay in their portion of the house between the hours of 7:30 or 8:00 AM and 5:00 PM. On the other hand, there was no suggestion that the Tompkins gave Ms. Rivas-Ortiz clear direction as to the hours that she was expected to work during this period of time. There is no dispute that Ms. Rivas-Ortiz was given a list of tasks to perform during these weeks (e.g. additional cleaning). Given the description of the tasks and the lack of clear direction from the Tompkins as to the hours which Ms. Rivas-Ortiz was to work, I conclude that the tasks could be and were intended to be completed within Ms. RivasOrtiz’s contractual hours of work, i.e. 35 hours per week. The Tompkins suggested that these weeks should be considered additional weeks of vacation for Ms. Rivas-Ortiz. This suggestion is not well founded. The fact of the matter is that Ms. Rivas-Ortiz was assigned work to do during these weeks. The Tompkins were on vacation, but not Ms. Rivas-Ortiz. 19. In addition to her regular daily work, Ms. Rivas-Ortiz would also baby sit the boys on Sunday evenings when the Tompkins sometimes went curling and Monday evenings when the Tompkins sometimes attended an exercise class. The Sunday evening work is over and above Ms. Rivas-Ortiz’s regular Monday to Friday work. There was also no suggestion that Ms. Rivas-Ortiz’s regular daily work was different the weeks that the Tompkins attended the exercise classes. That is, any time worked by Ms. Rivas-Ortiz in relation to the exercise classes was also over and above her regular Monday to Friday
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work. On the evidence, I accept that the Tompkins would be gone for three hours on curling evenings. The Tompkins testified that the exercise classes were an hour in length and were held at facility 5 minutes away from where they live. Accordingly, they argue that Ms. Rivas-Ortiz should only be considered to have worked 1.1 additional hours on those evenings. Apart from the fact that 1 hour and 10 minutes is not 1.1 hours, the Tompkins’ estimate is done with far too much exactitude to be compelling. I conclude that on the exercise nights, Ms. Rivas-Ortiz worked 1.25 hours (the amount originally identified in a letter dated October 19, 2011 from Mr. Pelletier described further below). 20. In the result, Ms. Rivas-Ortiz is entitled to be paid for at least 35 hours per week. She was paid $615 per bi-weekly pay period. Section 23 of the Act provides: 23. (1) An employer shall pay employees at least the prescribed minimum wage. (2) If an employer provides room or board to an employee, the prescribed amount with respect to room or board shall be deemed to have been paid by the employer to the employee as wages. (3) Compliance with this Part shall be determined on a pay period basis. (4) Without restricting the generality of subsection (3), if the prescribed minimum wage applicable with respect to an employee is expressed as an hourly rate, the employer shall not be considered to have complied with this Part unless, (a)
when the amount of regular wages paid to the employee in the pay period is divided by the number of hours he or she worked in the pay period, other than hours for which the employee was entitled to receive overtime pay or premium pay, the quotient is at least equal to the prescribed minimum wage; and
(b)
when the amount of overtime pay and premium pay paid to the employee in the pay period is divided by the number of hours worked in the pay period for which the employee was entitled to receive overtime pay or premium pay, the quotient is at least equal to one and one half times the prescribed minimum wage.
During the relevant period of time, the minimum wage was $10.25 per hour. Further, the prescribed amount with respect to room and board was $87.25 per week. Pursuant to section 23(2), this amount is deemed to have been paid to Ms. Rivas-Ortiz. There were some pay periods in which the amount paid to Ms. Rivas-Ortiz, even after addition of the deemed payment for room and board, was less than the minimum wage. Ms. Rivas-Ortiz is entitled to be paid the difference for those pay periods. There were some weeks in which the amount paid to Ms. Rivas-Ortiz, after addition of the amount for room and board, was at least the minimum wage and indeed exceeded the minimum
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21. Both Ms. Rivas-Ortiz and the Tompkins filed charts setting out hours worked, amounts owing and amounts paid. Attached to this decision as Appendix “A” is a revised chart which reflects my findings above. The amount of unpaid wages owing is $292.24. Ms. Rivas-Ortiz is entitled to 4% vacation pay on this amount. The amount of unpaid wages grossed up for vacation pay is $303.93. 22. There is no dispute that Ms. Rivas-Ortiz is owed three days vacation pay. I calculate this, based on 7 hours per day times $10.25 per hour, as $215.25. 23.
Ms. Rivas-Ortiz also seeks damages in relation to an alleged reprisal.
24. On October 15, 2011 Gerry Pelletier, Ms. Rivas-Ortiz’s representative, attended at the Tompkins’ house to discuss issues related to her employment. Much of the discussion touched upon whether the Tompkins had failed make and remit appropriate deductions from Ms. Rivas-Ortiz’s wages. The discussion also touched upon whether Ms. Rivas-Ortiz was being properly paid for all hours worked pursuant to the Employment Standards Act, 2000. Mr. Pelletier told the Tompkins that unless they complied with their statutory obligations, as he understood them, he would file complaints on behalf of Ms. Rivas-Ortiz. 25. There is no dispute that the discussion became heated. Ms. Rivas-Ortiz testified that Ms. Tompkins spoke to her in Spanish and said that if Mr. Pelletier continued with this she would fire Ms. Rivas-Ortiz and she would have to go back to Mexico. Mr. Pelletier testified that he asked Ms. Rivas-Ortiz to translate what had just been said and she told him that Ms. Tompkins said that if she carried forward with her compliant that Ms. Tompkins would fire her and have her sent back to Mexico. Mr. Pelletier turned to Ms. Tompkins and said that he was shocked that she had made such a threat and Ms. Tompkins responded that it was not a threat it was a promise. Ms. Tompkins testified that she told Ms. Rivas-Ortiz that if she thought she could get a better job, then by all means she should pursue it, that all the Tompkins would require was two weeks notice. She denied, however, having telling Ms. Rivas-Ortiz that she would have her sent back to Mexico. Mr. Tompkins stated that things got heated and that Ms. Tompkins said something to Ms. Rivas-Ortiz in Spanish. While he does not know enough Spanish to know exactly what was said, there was no reference to sending Ms. Rivas-Ortiz back to Mexico. 26. Mr. Pelletier prepared a letter dated October 19, 2011 putting his concerns in writing and making reference to the threat. Mr. Pelletier’s letter indicates that if he has not received a satisfactory response from the Tompkins by October 21, 2011, he would file complaints on behalf of Ms. Rivas-Ortiz with, among other agencies, “the Ontario Labour Relations Board”.
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wage. Section 23(3) however, means that the Tompkins are not entitled to an offsetting credit in relation to those pay periods.
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28. As noted, Ms. Rivas-Ortiz filed a complaint with the Ministry of Labour on November 24, 2011 which is the one giving rise to these proceedings. There is no evidence that she made the Tompkins aware of her complaint at that time. 29. Ms. Tompkins testified that as the children were now older, they decided that they no longer required a live-in care giver. Instead, she started looking for a position with her employer closer to home. Ms. Tompkins filed records showing that she applied for positions in December, 2011 and January, 2012. Ms. Rivas-Ortiz testified in cross examination that she was aware in at least December 2011 that Ms. Tompkins was looking for a new position. On February 21, 2012 Ms. Tompkins received an offer of a new position which was to commence on April 2, 2012. On February 29, 2012, she sent an email to “friends and family” advising them of her new position. Ms. Rivas-Ortiz was one of the recipients. 30. Ms. Tompkins testified that shortly after that she received a call from the Employment Standards Officer assigned to investigate Ms. Rivas-Ortiz’s claim. The officer advised the Tompkins that they owed Ms. Rivas-Ortiz additional money in relation to hours worked in the summer and by cheque dated March 6, 2012 the Tompkins paid Ms. Rivas-Ortiz an additional $465.76. 31. On March 23, 2012, Ms. Tompkins gave Ms. Rivas-Ortiz four weeks notice of lay off. Ms. Rivas-Ortiz became quite angry in front of the children, for which she apologized to Ms. Tompkins by email dated March 26, 2012. 32. On or about April 4, 2012 Ms. Tompkins provided an oral reference for Ms. Rivas-Ortiz with a new employer. Ms. Rivas-Ortiz was hired for that position. 33. Ms. Rivas-Ortiz argues that Ms. Tompkins threatened to fire her if she filed a complaint with the Ministry of Labour and that shortly after the Tompkins learned that she had in fact filed a complaint she was in fact fired. 34. The Tompkins deny there was a threat but in any event argue that there was no connection between any threat and the dismissal of Ms. Rivas-Ortiz. 35. There can be no doubt that on October 15, 2011 Ms. Tompkins expressed her displeasure to Ms. Rivas-Ortiz with respect to the claims being advanced on her behalf by Mr. Pelletier. There is no dispute that shortly after the Tompkins were contacted by an Employment Standards Officer, Ms. Rivas-Ortiz’s employment was terminated. It is possible to infer from these facts, as argued by Ms. Rivas-Ortiz, that Ms. Rivas-Ortiz’s employment was terminated as a result of her complaint to the Ministry of Labour. The question, however, is whether this is the most probable inference.
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27. Ms. Rivas-Ortiz continued to work for the Tompkins. There is no evidence of any action by the Tompkins against Ms. Rivas-Ortiz until March 23, 2012 as discussed further below.
36. In my view, the following additional facts are relevant to this determination. The statement made on October 15, 2011, what ever it was, was made in the context of a heated discussion. The Tompkins did not take action against Ms. Rivas-Ortiz immediately following the October 15, 2011 meeting, notwithstanding the receipt of the letter dated October 19, 2011 from Mr. Pelletier advising them that an employment standards complaint would be filed on October 21, 2011. Rather, the action said to constitute the reprisal, i.e. the termination of Ms. Rivas-Ortiz’s employment, did not happen until five months later, on March 23, 2012. By then, the two boys had gotten older (9 and 11), and it is reasonable to conclude that they no longer had need of a full time care giver. Ms. Tompkins did seek out and obtain another position closer to home to make this possible. Ms. Rivas-Ortiz was not terminated summarily, rather she was given four weeks notice. And finally, Ms. Tompkins provided a reference for Ms. Rivas-Ortiz which appears to have assisted her in obtaining an alternative position which suggests no bad faith on Ms. Tompkins’ part. All of the foregoing causes me to conclude that it is more probable that the termination of Ms. Rivas-Ortiz’s employment was unrelated to her employment standards complaint. Accordingly, I find there was no reprisal. 37. In the result, Ms. Rivas-Ortiz’s is owed $303.93 for unpaid wages (grossed up for vacation pay) and $215.25 in other unpaid vacation pay. The total of these amounts is $519.18. The Tompkins are entitled to a credit of $465.76 for the amount voluntarily paid during the employment standards officer’s investigation. 38.
The amount owing, therefore, is $53.42.
Disposition 39. For the reasons stated, I find that Monica and Doug Tompkins owe Susana Rivas-Ortiz $53.42 in unpaid wages and vacation pay. Monica and Doug Tompkins are to pay this amount to the Director of Employment Standards in trust for Susana Rivas-Ortiz. If this amount is not paid within 30 calendar days of the date of this decision, this decision will become an order to pay in favour of the Director of Employment Standards in trust for Susana Rivas-Ortiz, attracting the minimum statutory administrative fee of $100.00. The total amount of the order to pay will be $153.42. In addition, pursuant to section 119(12) of the Act, I direct that if this decision becomes an order to pay then interest will be payable at the rate and calculated in the manner determined by the Director under subsection 88(5) of the Act.
“Ian Anderson” for the Board
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Mon-Fri 2 week daytime period Actual ending: Hours 10-Dec 70.00 24-Dec 70.00 07-Jan 70.00 21-Jan 70.00 04-Feb 70.00 18-Feb 70.00 04-Mar 70.00 18-Mar 70.00 01-Apr 70.00 15-Apr 70.00 29-Apr 70.00 13-May 70.00 27-May 70.00 10-Jun 70.00 24-Jun 70.00 08-Jul 77.50 22-Jul 85.00 05-Aug 70.00 19-Aug 70.00 02-Sep 70.00 16-Sep 70.00 30-Sep 70.00 14-Oct 70.00 28-Oct 70.00 11-Nov 70.00 25-Nov 70.00 09-Dec 70.00 23-Dec 70.00 06-Jan 70.00 20-Jan 70.00 03-Feb 70.00 17-Feb 70.00 02-Mar 70.00 16-Mar 70.00 30-Mar 70.00 13-Apr 70.00 20-Apr 35.00
Sun. Nights 6.00 3.00 0.00 6.00 6.00 3.00 3.00 3.00 3.00 6.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 6.00 6.00 6.00 6.00 0.00 0.00 6.00 6.00 6.00 3.00 0.00 3.00 3.00 0.00
Mon. Nights 2.5 0 0 2.5 2.5 2.5 1.25 1.25 1.25 2.5 1.25 2.5 0 2.5 2.5 0 0 0 0 0 1.25 2.5 1.25 2.5 1.25 2.5 2.5 1.25 0 2.5 2.5 2.5 1.25 1.25 1.25 1.25 1.25
Total hours worked 78.50 73.00 70 78.5 78.5 75.5 74.25 74.25 74.25 78.5 71.25 72.5 70 72.5 72.5 77.5 85 70 70 70 71.25 72.5 71.25 78.5 77.25 78.5 78.5 71.25 70 78.5 78.5 78.5 74.25 71.25 74.25 74.25 36.25
Total wages owing 804.63 748.25 717.50 804.63 804.63 773.88 761.06 761.06 761.06 804.63 730.31 743.13 717.50 743.13 743.13 794.38 871.25 717.50 717.50 717.50 730.31 743.13 730.31 804.63 791.81 804.63 804.63 730.31 717.50 804.63 804.63 804.63 761.06 730.31 761.06 761.06 371.56
Amount paid 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 307.50
Amount deemed paid as Room & Board 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 85.25
Shortfall 19.13 N/A N/A 19.13 19.13 N/A N/A N/A N/A 19.13 N/A N/A N/A N/A N/A 8.88 85.75 N/A N/A N/A N/A N/A N/A 19.13 6.31 19.13 19.13 N/A N/A 19.13 19.13 19.13 N/A N/A N/A N/A N/A
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APPENDIX “A”
BEFORE: Ian Anderson, Vice-Chair.
APPEARANCES: Gerry Pelletier and Susana Rivas-Ortiz appearing for the applicant; Doug Tompkins and Monica Tompkins appearing for the responding party; no one appearing for Director of Employment Standards.
DECISION OF THE BOARD: May 16, 2013
1. This is an application under section 116 of the Employment Standards Act, 2000. Susana Rivas-Ortiz applies for review of a decision of an Employment Standards Officer which declined to make an order to pay wages in her favour and, while concluding that she had been subject to a threat which was a reprisal contrary to the Act, declined to award her any compensation as a result. 2.
The facts are not in dispute unless noted.
3. Ms. Rivas-Ortiz was employed by Doug and Monica Tompkins as a caregiver for their two sons. While doing so, she lived in a basement apartment in the Tompkins’ home. The employment relationship commenced in 2007, at which time the boys were five and three years of age, and came to an end in 2012. 4. At the commencement of the relationship, Ms. Rivas-Ortiz and Ms. Tompkins signed a document headed “Live-in Caregiver Program” which originated from the federal government. The document sets out certain terms and conditions of employment. Of particular note given the issues in dispute between these parties that document provides for an hourly wage of $9.25 per hour, specifies that there will be 35 hours of work per week and gives the cost of room and board as $369.42 / month. There is a space for the signature of the employer and the signature of the employee. Above the signature of the employer, the document states: “I certify that the duties outlined above are accurate and correct. I will abide by provincial labour standards. I will provide a Record of Employment on termination of employment.” Above the signature of the employee, the document states: “I have read the undertaking and understand it.” 5. 2011.
Ms. Rivas-Ortiz filed her claim with the Ministry of Labour on November 24, Having regard to section 111(3.1) and (4), the relevant period of inquiry with
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6. As will become apparent, Ms. Rivas-Ortiz’s duties and hours varied depending on whether the school year was in session or the boys were on summer vacation. In addition, there were four or five weeks a year when the Tompkins would go away on vacation with the boys but Ms. Rivas-Ortiz continued to be paid the same amount even though the duties which she had to perform during these weeks were limited. The Tompkins state they took a global approach to compensating Ms. Rivas-Ortiz. That is, in their view she was overcompensated for the weeks during the school year and the weeks when they were away on vacation which more than made up for any under compensation for the summer weeks during which Ms. Rivas-Ortiz worked longer hours (and, as discussed further below, the weeks when she provided babysitting on Sunday or Monday nights). 7. The Act is concerned with providing minimum protection to the most vulnerable of workers. It does not permit the kind of global averaging adopted by the Tompkins. Rather, section 11(1) of the Act provides: An employer shall establish a recurring pay period and a recurring pay day and shall pay all wages earned during each pay period, other than accruing vacation pay, no later than the pay day for that period.
8. In this case, there is no dispute that the Tompkins established a bi-weekly pay period. Accordingly, the question to be determined is whether Ms. Rivas-Ortiz was paid all of the wages which she earned each pay period. 9. During the school year, Ms. Rivas-Ortiz would commence her work day at approximately 7:30 AM. Her duties at the start of her work day were directed to getting the boys on the school bus at 8:40 AM. She would make their lunches, see that they had breakfast and walk them to the bus stop. Her duties at the end of the work day were to meet the boys at the school bus stop at 4:20 PM, walk them home and see that they commenced their homework. One of Mr. or Ms. Tompkins would be home by 5:00 PM, at which time Ms. Rivas-Ortiz was free to go. Ms. Rivas-Ortiz had other duties which she performed over the course of the day. From Monday to Thursday, Ms. Rivas-Ortiz was also responsible for preparing the evening meal for the Tompkins. On Mondays she would shop for some groceries for the Tompkins (the Tompkins purchased major items on the weekends) and clean the house. On Wednesdays she would clean the boys’ bathroom. On Thursdays she would do the boys’ laundry. The Tompkins described these as Ms. Rivas-Ortiz’s “core duties”. 10. In addition, during the relevant time period Ms. Rivas-Ortiz testified that she did some other tasks during the day in the school year period. She testified that at the suggestion of Ms. Tompkins she “volunteered” at the children’s school distributing milk once a week for about an hour at a time. In fact she did not do this every week, as
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respect to a claim for wages and vacation pay owing but unpaid is November 24, 2010 until the end of her employment on April 24, 2012. During this period, Ms. Rivas-Ortiz was paid the gross amount of $615.00 per bi-weekly pay period. In addition she was provided with a private room and with board.
sometimes she was “busy”, but she estimates she did it three times a month. Ms. RivasOrtiz also “volunteered” twice to assist with pictures at the school, again at the suggestion of Ms. Tompkins. The Tompkins dispute these activities constitute work. Ms. Rivas-Ortiz also testified that during the relevant period she took one of the boys to the orthodontist once and to the dentist twice. 11. Ms. Rivas-Ortiz and the Tompkins disagree with respect to how long it took Ms. Rivas-Ortiz to perform the core duties and the additional duties. They also disagree as to whether or not she is deemed by O. Reg. 285/01 to have been performing work during the times in the day when she was not performing any duties. 12. Ms. Rivas-Ortiz testified that it took her most of every day, from 7:30 AM to 5:00 PM, to perform her assigned duties. She testified that there were at most two or three hours per day for three of the days in the week when she was not performing duties. In any event, Ms. Rivas-Ortiz claims that she was required to be in the Tompkins’ house at all times from 7:30 AM to 5:00 PM and was reprimanded on one occasion when Ms. Tompkins discovered that she was not in the house. (However, at another point she also conceded that she was free to leave the house provided she had her cell phone with her.) Accordingly, Ms. Rivas-Ortiz argues that she is deemed to have been performing work the whole day, whether or not she was in fact performing work. She relies upon section 6(1)(b)(i) of O. Reg. 285/01: 6. (1) Subject to subsection (2), work shall be deemed to be performed by an employee for the employer, (a) where work is, (i) permitted or suffered to be done by the employer, or (ii) in fact performed by an employee although a term of the contract of employment expressly forbids or limits hours of work or requires the employer to authorize hours of work in advance; (b) where the employee is not performing work and is required to remain at the place of employment, (i) waiting or holding himself or herself ready for call to work, or (ii) on a rest or break-time other than an eating period.
13. The Tompkins estimate that the core duties would have taken Ms. Rivas-Ortiz 23 hours per week. They claim that the balance of the time Ms. Rivas-Ortiz was free to come and go, subject only to the requirement that she be available by cell phone in case they needed to call her with respect to an emergency in relation to one of the boys. Ms. Tompkins agreed that there was one instance in which she was upset that she could not reach Ms. Rivas-Ortiz, but her recollection of that instance was that she was unable to reach Ms. Rivas-Ortiz on her cell phone and she told Ms. Rivas-Ortiz that she had to have her cell phone with her at all times, not that she had to be in the house. The Tompkins argue that the situation falls within the exception to section 6(1) of O. Reg. 285/01 set out in section 6(2):
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(a) is entitled to, (i) take time off work for an eating period, (ii) take at least six hours or such longer period as is established by contract, custom or practice for sleeping and the employer furnishes sleeping facilities, or (iii) take time off work in order to engage in the employee’s own private affairs or pursuits as is established by contract, custom or practice; (b) is not at the place of employment and is waiting or holding himself or herself ready for call to work.
14. In my view, the exception contained in section 6(2) of O. Reg. 285/01 applies. While it may have been the case that Ms. Rivas-Ortiz was required to be in the house at all times when the boys were younger, at the times relevant to this claim they were both in full time attendance at school. Thereafter, there is no reason why the Tompkins would have insisted that Ms. Rivas-Ortiz be in the Tompkins’ residence at all times during the school day, as long as she was available as required. Thus, I find Ms. Tompkins’ evidence with respect to the incident described more plausible that that of Ms. RivasOrtiz. Further, and in any event, as noted Ms. Rivas-Ortiz gave conflicting evidence on this point, conceding at another point in her evidence that she was free to come and go. 15. The question is, therefore, how many hours Ms. Rivas-Ortiz worked during the day each week during the school year. Ms. Rivas-Ortiz claims that she worked 8.75 hours during the hours of 7:30 AM and 5:00 PM each day, for a total of 43.75 hours per week. However, as noted, she also conceded that on three days a week she had two to three hours of free time. Therefore on her evidence she worked between 37.75 and 34.75 hours per week. The Tompkins conceded that they have no direct knowledge of how many hours Ms. Rivas-Ortiz worked during any given day. Their estimate of 23 hours per week is based upon attributing time to the performance of the various tasks which Ms. Rivas-Ortiz performed on various days. Thus, on Mondays they estimate that she worked 3 hours in the morning (from 7:30 to 10:30 AM) and 2.5 hours in the afternoon (from 2:30 to 5:00 PM); on Tuesdays they estimate that she worked 1.5 hours in the morning (7:30 to 9:00 AM) and 2.5 hours in the afternoon (2:30 to 5:00 PM); on Wednesdays 3 hours in the morning (7:30 to 1030 AM) and 2.5 hours in the afternoon (2:30 to 5:00 PM; on Thursdays 3 hours in the morning (7:30 to 10:30 AM) and 2.5 hours in the afternoon (2:30 to 5:00 PM); and on Fridays 1.5 hours in the morning (7:30 to 9:00 AM) and 1 hour in the afternoon (4 to 5 PM). 16. In my view, it is appropriate to use 35 hours a week for the following reasons. First, it is consistent with the only direct evidence which I have on this point, that of Ms. Rivas-Ortiz. Second, it was the amount originally agreed upon in the contract. Although questioned repeatedly on this point, Ms. Tompkins was unable to identify a
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(2) Work shall not be deemed to be performed for an employer during the time the employee,
direct discussion with Ms. Rivas-Ortiz in which she was told that her expected hours of work were being reduced from 35 per week to 30 per week. If Ms. Rivas-Ortiz was expected, as I find, to be at work for 35 hours per week it is irrelevant whether or not she actually performed duties for all of those hours: it is an employer’s obligation to assign duties, not an employee’s obligation to find them. 17. During the eight weeks in the summer when the boys were not in school, Ms. Rivas-Ortiz was responsible for looking after the boys as well as her other duties. Her work day would commence at 8:00 AM and end at 5:00 PM. Allowing half an hour for lunch, she worked 42.5 hours a week during these weeks. The Tompkins testified that on five days during the summer, Ms. Tompkins’ mother took the boys for the day. Ms. Rivas-Ortiz testified that on all but one of those days she went with them. The evidence with respect to the other day was non specific both as to timing (i.e. whether it occurred during the relevant period of time) and as to whether or not Ms. Rivas-Ortiz was given other duties to perform on that day or otherwise hold herself available to work. Accordingly, I make no adjustment for the days on which Ms. Rivas-Ortiz went with Ms. Tompkins’ mother and the boys. 18. As noted, there were also four or five weeks a year when the Tompkins would go away on vacation with the boys. Some of these weeks were during the summer vacation period, some were not. Ms. Rivas-Ortiz continued to be paid the same amount during this time. Ms. Rivas-Ortiz suggested that she was required to stay in the house while the Tompkins were away. While I am prepared to accept that the Tompkins indicated to her that they wanted her to watch the house while they were away, it is important to recall that Ms. Rivas-Ortiz’s apartment was in the basement of the house. There is simply no reason why the Tompkins would have insisted that Ms. Rivas-Ortiz stay in their portion of the house between the hours of 7:30 or 8:00 AM and 5:00 PM. On the other hand, there was no suggestion that the Tompkins gave Ms. Rivas-Ortiz clear direction as to the hours that she was expected to work during this period of time. There is no dispute that Ms. Rivas-Ortiz was given a list of tasks to perform during these weeks (e.g. additional cleaning). Given the description of the tasks and the lack of clear direction from the Tompkins as to the hours which Ms. Rivas-Ortiz was to work, I conclude that the tasks could be and were intended to be completed within Ms. RivasOrtiz’s contractual hours of work, i.e. 35 hours per week. The Tompkins suggested that these weeks should be considered additional weeks of vacation for Ms. Rivas-Ortiz. This suggestion is not well founded. The fact of the matter is that Ms. Rivas-Ortiz was assigned work to do during these weeks. The Tompkins were on vacation, but not Ms. Rivas-Ortiz. 19. In addition to her regular daily work, Ms. Rivas-Ortiz would also baby sit the boys on Sunday evenings when the Tompkins sometimes went curling and Monday evenings when the Tompkins sometimes attended an exercise class. The Sunday evening work is over and above Ms. Rivas-Ortiz’s regular Monday to Friday work. There was also no suggestion that Ms. Rivas-Ortiz’s regular daily work was different the weeks that the Tompkins attended the exercise classes. That is, any time worked by Ms. Rivas-Ortiz in relation to the exercise classes was also over and above her regular Monday to Friday
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work. On the evidence, I accept that the Tompkins would be gone for three hours on curling evenings. The Tompkins testified that the exercise classes were an hour in length and were held at facility 5 minutes away from where they live. Accordingly, they argue that Ms. Rivas-Ortiz should only be considered to have worked 1.1 additional hours on those evenings. Apart from the fact that 1 hour and 10 minutes is not 1.1 hours, the Tompkins’ estimate is done with far too much exactitude to be compelling. I conclude that on the exercise nights, Ms. Rivas-Ortiz worked 1.25 hours (the amount originally identified in a letter dated October 19, 2011 from Mr. Pelletier described further below). 20. In the result, Ms. Rivas-Ortiz is entitled to be paid for at least 35 hours per week. She was paid $615 per bi-weekly pay period. Section 23 of the Act provides: 23. (1) An employer shall pay employees at least the prescribed minimum wage. (2) If an employer provides room or board to an employee, the prescribed amount with respect to room or board shall be deemed to have been paid by the employer to the employee as wages. (3) Compliance with this Part shall be determined on a pay period basis. (4) Without restricting the generality of subsection (3), if the prescribed minimum wage applicable with respect to an employee is expressed as an hourly rate, the employer shall not be considered to have complied with this Part unless, (a)
when the amount of regular wages paid to the employee in the pay period is divided by the number of hours he or she worked in the pay period, other than hours for which the employee was entitled to receive overtime pay or premium pay, the quotient is at least equal to the prescribed minimum wage; and
(b)
when the amount of overtime pay and premium pay paid to the employee in the pay period is divided by the number of hours worked in the pay period for which the employee was entitled to receive overtime pay or premium pay, the quotient is at least equal to one and one half times the prescribed minimum wage.
During the relevant period of time, the minimum wage was $10.25 per hour. Further, the prescribed amount with respect to room and board was $87.25 per week. Pursuant to section 23(2), this amount is deemed to have been paid to Ms. Rivas-Ortiz. There were some pay periods in which the amount paid to Ms. Rivas-Ortiz, even after addition of the deemed payment for room and board, was less than the minimum wage. Ms. Rivas-Ortiz is entitled to be paid the difference for those pay periods. There were some weeks in which the amount paid to Ms. Rivas-Ortiz, after addition of the amount for room and board, was at least the minimum wage and indeed exceeded the minimum
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21. Both Ms. Rivas-Ortiz and the Tompkins filed charts setting out hours worked, amounts owing and amounts paid. Attached to this decision as Appendix “A” is a revised chart which reflects my findings above. The amount of unpaid wages owing is $292.24. Ms. Rivas-Ortiz is entitled to 4% vacation pay on this amount. The amount of unpaid wages grossed up for vacation pay is $303.93. 22. There is no dispute that Ms. Rivas-Ortiz is owed three days vacation pay. I calculate this, based on 7 hours per day times $10.25 per hour, as $215.25. 23.
Ms. Rivas-Ortiz also seeks damages in relation to an alleged reprisal.
24. On October 15, 2011 Gerry Pelletier, Ms. Rivas-Ortiz’s representative, attended at the Tompkins’ house to discuss issues related to her employment. Much of the discussion touched upon whether the Tompkins had failed make and remit appropriate deductions from Ms. Rivas-Ortiz’s wages. The discussion also touched upon whether Ms. Rivas-Ortiz was being properly paid for all hours worked pursuant to the Employment Standards Act, 2000. Mr. Pelletier told the Tompkins that unless they complied with their statutory obligations, as he understood them, he would file complaints on behalf of Ms. Rivas-Ortiz. 25. There is no dispute that the discussion became heated. Ms. Rivas-Ortiz testified that Ms. Tompkins spoke to her in Spanish and said that if Mr. Pelletier continued with this she would fire Ms. Rivas-Ortiz and she would have to go back to Mexico. Mr. Pelletier testified that he asked Ms. Rivas-Ortiz to translate what had just been said and she told him that Ms. Tompkins said that if she carried forward with her compliant that Ms. Tompkins would fire her and have her sent back to Mexico. Mr. Pelletier turned to Ms. Tompkins and said that he was shocked that she had made such a threat and Ms. Tompkins responded that it was not a threat it was a promise. Ms. Tompkins testified that she told Ms. Rivas-Ortiz that if she thought she could get a better job, then by all means she should pursue it, that all the Tompkins would require was two weeks notice. She denied, however, having telling Ms. Rivas-Ortiz that she would have her sent back to Mexico. Mr. Tompkins stated that things got heated and that Ms. Tompkins said something to Ms. Rivas-Ortiz in Spanish. While he does not know enough Spanish to know exactly what was said, there was no reference to sending Ms. Rivas-Ortiz back to Mexico. 26. Mr. Pelletier prepared a letter dated October 19, 2011 putting his concerns in writing and making reference to the threat. Mr. Pelletier’s letter indicates that if he has not received a satisfactory response from the Tompkins by October 21, 2011, he would file complaints on behalf of Ms. Rivas-Ortiz with, among other agencies, “the Ontario Labour Relations Board”.
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wage. Section 23(3) however, means that the Tompkins are not entitled to an offsetting credit in relation to those pay periods.
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28. As noted, Ms. Rivas-Ortiz filed a complaint with the Ministry of Labour on November 24, 2011 which is the one giving rise to these proceedings. There is no evidence that she made the Tompkins aware of her complaint at that time. 29. Ms. Tompkins testified that as the children were now older, they decided that they no longer required a live-in care giver. Instead, she started looking for a position with her employer closer to home. Ms. Tompkins filed records showing that she applied for positions in December, 2011 and January, 2012. Ms. Rivas-Ortiz testified in cross examination that she was aware in at least December 2011 that Ms. Tompkins was looking for a new position. On February 21, 2012 Ms. Tompkins received an offer of a new position which was to commence on April 2, 2012. On February 29, 2012, she sent an email to “friends and family” advising them of her new position. Ms. Rivas-Ortiz was one of the recipients. 30. Ms. Tompkins testified that shortly after that she received a call from the Employment Standards Officer assigned to investigate Ms. Rivas-Ortiz’s claim. The officer advised the Tompkins that they owed Ms. Rivas-Ortiz additional money in relation to hours worked in the summer and by cheque dated March 6, 2012 the Tompkins paid Ms. Rivas-Ortiz an additional $465.76. 31. On March 23, 2012, Ms. Tompkins gave Ms. Rivas-Ortiz four weeks notice of lay off. Ms. Rivas-Ortiz became quite angry in front of the children, for which she apologized to Ms. Tompkins by email dated March 26, 2012. 32. On or about April 4, 2012 Ms. Tompkins provided an oral reference for Ms. Rivas-Ortiz with a new employer. Ms. Rivas-Ortiz was hired for that position. 33. Ms. Rivas-Ortiz argues that Ms. Tompkins threatened to fire her if she filed a complaint with the Ministry of Labour and that shortly after the Tompkins learned that she had in fact filed a complaint she was in fact fired. 34. The Tompkins deny there was a threat but in any event argue that there was no connection between any threat and the dismissal of Ms. Rivas-Ortiz. 35. There can be no doubt that on October 15, 2011 Ms. Tompkins expressed her displeasure to Ms. Rivas-Ortiz with respect to the claims being advanced on her behalf by Mr. Pelletier. There is no dispute that shortly after the Tompkins were contacted by an Employment Standards Officer, Ms. Rivas-Ortiz’s employment was terminated. It is possible to infer from these facts, as argued by Ms. Rivas-Ortiz, that Ms. Rivas-Ortiz’s employment was terminated as a result of her complaint to the Ministry of Labour. The question, however, is whether this is the most probable inference.
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27. Ms. Rivas-Ortiz continued to work for the Tompkins. There is no evidence of any action by the Tompkins against Ms. Rivas-Ortiz until March 23, 2012 as discussed further below.
36. In my view, the following additional facts are relevant to this determination. The statement made on October 15, 2011, what ever it was, was made in the context of a heated discussion. The Tompkins did not take action against Ms. Rivas-Ortiz immediately following the October 15, 2011 meeting, notwithstanding the receipt of the letter dated October 19, 2011 from Mr. Pelletier advising them that an employment standards complaint would be filed on October 21, 2011. Rather, the action said to constitute the reprisal, i.e. the termination of Ms. Rivas-Ortiz’s employment, did not happen until five months later, on March 23, 2012. By then, the two boys had gotten older (9 and 11), and it is reasonable to conclude that they no longer had need of a full time care giver. Ms. Tompkins did seek out and obtain another position closer to home to make this possible. Ms. Rivas-Ortiz was not terminated summarily, rather she was given four weeks notice. And finally, Ms. Tompkins provided a reference for Ms. Rivas-Ortiz which appears to have assisted her in obtaining an alternative position which suggests no bad faith on Ms. Tompkins’ part. All of the foregoing causes me to conclude that it is more probable that the termination of Ms. Rivas-Ortiz’s employment was unrelated to her employment standards complaint. Accordingly, I find there was no reprisal. 37. In the result, Ms. Rivas-Ortiz’s is owed $303.93 for unpaid wages (grossed up for vacation pay) and $215.25 in other unpaid vacation pay. The total of these amounts is $519.18. The Tompkins are entitled to a credit of $465.76 for the amount voluntarily paid during the employment standards officer’s investigation. 38.
The amount owing, therefore, is $53.42.
Disposition 39. For the reasons stated, I find that Monica and Doug Tompkins owe Susana Rivas-Ortiz $53.42 in unpaid wages and vacation pay. Monica and Doug Tompkins are to pay this amount to the Director of Employment Standards in trust for Susana Rivas-Ortiz. If this amount is not paid within 30 calendar days of the date of this decision, this decision will become an order to pay in favour of the Director of Employment Standards in trust for Susana Rivas-Ortiz, attracting the minimum statutory administrative fee of $100.00. The total amount of the order to pay will be $153.42. In addition, pursuant to section 119(12) of the Act, I direct that if this decision becomes an order to pay then interest will be payable at the rate and calculated in the manner determined by the Director under subsection 88(5) of the Act.
“Ian Anderson” for the Board
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Mon-Fri 2 week daytime period Actual ending: Hours 10-Dec 70.00 24-Dec 70.00 07-Jan 70.00 21-Jan 70.00 04-Feb 70.00 18-Feb 70.00 04-Mar 70.00 18-Mar 70.00 01-Apr 70.00 15-Apr 70.00 29-Apr 70.00 13-May 70.00 27-May 70.00 10-Jun 70.00 24-Jun 70.00 08-Jul 77.50 22-Jul 85.00 05-Aug 70.00 19-Aug 70.00 02-Sep 70.00 16-Sep 70.00 30-Sep 70.00 14-Oct 70.00 28-Oct 70.00 11-Nov 70.00 25-Nov 70.00 09-Dec 70.00 23-Dec 70.00 06-Jan 70.00 20-Jan 70.00 03-Feb 70.00 17-Feb 70.00 02-Mar 70.00 16-Mar 70.00 30-Mar 70.00 13-Apr 70.00 20-Apr 35.00
Sun. Nights 6.00 3.00 0.00 6.00 6.00 3.00 3.00 3.00 3.00 6.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 6.00 6.00 6.00 6.00 0.00 0.00 6.00 6.00 6.00 3.00 0.00 3.00 3.00 0.00
Mon. Nights 2.5 0 0 2.5 2.5 2.5 1.25 1.25 1.25 2.5 1.25 2.5 0 2.5 2.5 0 0 0 0 0 1.25 2.5 1.25 2.5 1.25 2.5 2.5 1.25 0 2.5 2.5 2.5 1.25 1.25 1.25 1.25 1.25
Total hours worked 78.50 73.00 70 78.5 78.5 75.5 74.25 74.25 74.25 78.5 71.25 72.5 70 72.5 72.5 77.5 85 70 70 70 71.25 72.5 71.25 78.5 77.25 78.5 78.5 71.25 70 78.5 78.5 78.5 74.25 71.25 74.25 74.25 36.25
Total wages owing 804.63 748.25 717.50 804.63 804.63 773.88 761.06 761.06 761.06 804.63 730.31 743.13 717.50 743.13 743.13 794.38 871.25 717.50 717.50 717.50 730.31 743.13 730.31 804.63 791.81 804.63 804.63 730.31 717.50 804.63 804.63 804.63 761.06 730.31 761.06 761.06 371.56
Amount paid 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 615.00 307.50
Amount deemed paid as Room & Board 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 170.50 85.25
Shortfall 19.13 N/A N/A 19.13 19.13 N/A N/A N/A N/A 19.13 N/A N/A N/A N/A N/A 8.88 85.75 N/A N/A N/A N/A N/A N/A 19.13 6.31 19.13 19.13 N/A N/A 19.13 19.13 19.13 N/A N/A N/A N/A N/A
2013 CanLII 28251 (ON LRB)
APPENDIX “A”
