Summary of Issues
Abdul began working for BEF Company on February 1, 2017. He was hired as a customer service representative where he processed customer complaints and entered them into a database. Abdul was earning $880 per week, not including vacation pay.
Andrea is the general manager of BEF. On February 7, 2017, Andrea and Abdul signed an employment agreement. In the agreement, Abdul would be paid time in lieu for any overtime that he worked. It was a very busy time for BEF and Abdul worked many hours of overtime. From February until the end of June, 2016, Abdul worked a total of 180 hours of overtime. In June, Abdul took a week off and used 40 hours of lieu time and therefore has 140 hours remaining.
On July 1, 2017, Abdul was promoted to customer service manager. In addition to keeping some of the data entry work that he previously performed, Abdul is also responsible for recording employee absences and lateness in his work area. He reports this information to Andrea and Andrea makes the decision regarding discipline and termination. Abdul now earns $968 per week, not including vacation pay.
According to BEF Company policy, Abdul is no longer entitled to payment of overtime or any lieu time because he is a manager. Andrea promised to pay out Abdul’s banked overtime from his previous position over the next twelve months.
Abdul finds that the pace of work has increased. He is now working 60 hours per week on average. From July 1, 2017 to February 5, 2018, Abdul did not have any time off work. He is working seven days a week, every week. As a manager he is not paid overtime but his employer does pay him time and a half on public holidays. It is difficult to work on public holidays since his children are home; he would like to spend time with them but he needs the money and is appreciative that his company gives him more than straight time for public holidays.
It was so busy at work that Abdul could not take time off from work when he had a very high fever. He collapsed in the office and Andrea told him to rest in the sick room for the day. Andrea would have liked to have Abdul go home but she needed him at work. Thankfully, his fever subsided and he was able to work the next day.
At the beginning of December, Andrea noticed that a computer near Abdul’s workstation had been vandalized. Although Andrea could not determine who broke the computer, she had the pay of the 10 employees whose workstations are closest to the computer docked for the damage. Abdul’s pay was reduced by $150 to cover the damage.
On December 15, 2017, BEF’s main client GHI Company announced that it is no longer going to use BEF’s services. GHI’s business accounts for 40% of BEF’s sales. Although BEF is trying to gain new customers, the loss of business has been enormous!
To avoid huge costs of terminating the employment of its employees, BEF has decided to embark on a new strategy. On January 1, 2018, it announced that, effective immediately, all company health benefits were eliminated. In addition, all managers will have a 25% pay cut. Abdul will therefore earn only $629.20 per week.
At this point, Andrea informed Abdul that the company will no longer be paying out his earned overtime from his previous position. From February 2017 to January 1, 2018, BEF had paid Abdul a total of $2640 in overtime pay.
On February 8, 2018, Abdul was also informed that he was required to agree to a new oral agreement permitting BEF Company to eliminate any unused vacation. Given that it was a busy year, Abdul never had the chance to use any of his three weeks of his vacation.
Unfortunately, things went from bad to worse! On February 20, 2018, BEF lost its second major client which accounted for 10% of BEF’s business.
On February 21, 2018, all 400 employees of BEF Company were informed that their employment would be terminated immediately. Abdul was provided with 2 weeks termination pay in lieu of notice via direct deposit to his bank account. However, BEF Company filed for bankruptcy on February 24, 2018 and Abdul was unable to recover any additional monies owing to him.
Abdul has approached you for help. Your job is to present his case to the Employment Standards Tribunal.
You are to provide a written report in the following format:
Summary of Issues:
this is where you summarize the complaints under the Employment Standards Act, 2000 that Abdul has
here you provide details of each complaint. You should make reference to the applicable section(s) of the Employment Standards Act, 2000 and provide examples of relevant case law. Outline any tests, if applicable. The text has examples of cases with similar fact scenarios. Use online resources such as canlii.org to find more examples. Separate into subsections for each pertinent issue.
The present case is based on the employment contract that has been made in between Andrea, the General Manager of BEF Company and Abdul. According to the contract, Abdul will get $880 per week in lieu for any overtime payment. During the busy schedule of the company, Abdul has worked for 180 hours as overtime. However, because of his leaves, the overtime has become 140 days in lieu of 180 days. Further, he has been promoted as a service manager in the company and his salary has been incremented as $968 per week. According to the facts of the case, it has been observed that Abdul has to work 60 hours per week and he gets one and half-day payment in the public holidays. Additionally, when he gets sick, the company has pressurized him to continue work. Certain issues have been cropped up in the office during the time. It has been observed that the Manager of the company has deducted Abdul’s salary $150 without giving him any chance to give the justification. Additionally, it has been observed that the company has lost two of its big customer and that affects the pay scale of Abdul and his salary has been decreased. It has been observed that Abdul has failed to recover all his additional benefits from the company after it has filed application for bankruptcy. Further, the company has failed to provide him any termination pay.
Considering the statement, it can be stated that there are certain issues that faced by Abdul during his employment. The main issue in this case is to determine whether Abdul can recover additional monies owing to him during the employment or not. The case is particularly based on the provisions of the Employment Standard Act 2000. It has been clarified from the case law that Abdul has to work for 60 hours per week within that amount fixed by the company. Further, it is to be mentioned that he did not get any overtime payment or public holiday leave from the company. He has to work for seven days a week (Stecy-Hildebrandt, Fuller & Burns, 2018). According to section 15(4) of the Act, an employee is required to work for 44 hours per week and in case the time has been exceeds, he or she will entitled to extra payment from the company (Vosko, Noack & Thomas, 2016).
According to the Employment Act, every employee should get certain vacation pay from the company. However, Abdul has not been provided with any such payment. Further, it has been stated under section 9(4) of the Fair Workplaces, Better Jobs Act 2017, the employees must get the additional benefits within that year (Thomas et al., 2015). However, according to the case of Abdul, it has been noticed that he has not received any additional benefits from the company even after the company becomes insolvent.
Further, according to section 22(1) of the Employment Standard Act 2000, an employer is required to provide overtime payment to an employee. According to the rule, if an employee works for more than 44 hours a week, the employer will give him one and half of his salary as overtime payment. However, in this present case, it has been observed that Abdul has worked for 60 hours per week and the company has not provided him any additional payment. Further, the company has deducted his salary unjustifiably. According to the Act, the employee should get the minimum wage mentioned under section 23(1) of the Act 2000 (Casey et al., 2018). It has been mentioned in the case that the company has failed to provide Abdul justified payment for the public holidays and the company has also failed to calculate the amount for public holidays as mentioned in section 24(1) of the Act. An option for equal payment has been mentioned under section 42 of the Act where it has been stated that employees are liable to get all the required benefits and payments from the company (Alexander & Haley?Lock, 2015). Further, no employer will be allowed to deduct the salary of the employees without giving him an opportunity to give proper justification regarding the same. According to the guidelines of the Employment Standard Act 2000, it is the right of every employee to get certain termination pay as well as severance pay. However, in the present case, it has been observed that Abdul has received no such payment from the company; rather his slary amount has been deducted and he became unable to collect the additional amount from the company. Further, he has not received the health and safety rules regarding the employees.
It has therefore, been observed that the employers of Abdul have failed to comply with all the rules under the Employment Standard Act 2000 and Abdul has been deprived of his payment unjustifiably. Further, the company has failed to provide him additional payment for the overtime and the employment contract has not maintained relevant sections of the Act. According to the case, Abdul is advised to sue the company for non-compliance the rule for additional payment despite being forced to work for the stipulated time period i.e. 44 hours a week during the busy time schedule. According to the perspective, it can be stated that Abdul is entitled to receive additional payment from the company.
Alexander, C., & Haley?Lock, A. (2015). Underwork, Work?Hour Insecurity, and A New Approach to Wage and Hour Regulation. Industrial Relations: A Journal of Economy and Society, 54(4), 695-716.
Casey, R., Tucker, E., Vosko, L. F., & Noack, A. M. (2018). Using tickets in employment standards inspections: Deterrence as effective enforcement in Ontario, Canada?. The Economic and Labour Relations Review, 1035304618769772.
Grundy, J., Noack, A. M., Vosko, L. F., Casey, R., & Hii, R. (2017). Enforcement of Ontario's Employment Standards Act: The Impact of Reforms. Canadian Public Policy, 43(3), 190-201.
Stecy-Hildebrandt, N., Fuller, S., & Burns, A. (2018). ‘Bad’Jobs in a ‘Good’Sector: Examining the Employment Outcomes of Temporary Work in the Canadian Public Sector. Work, Employment and Society, 0950017018758217.
Thomas, M., Vosko, L., Tucker, E., Steedman, M., Siemiatycki, E., Noack, A., ... & Leinveer, E. (2015, July). The Employment Standards Enforcement Gap and the Overtime Pay Exemption in Ontario . In Prepared for the ILO 4th Conference of the Regulating for Decent Work Network, Geneva.
Vosko, L. F., Noack, A. M., & Thomas, M. P. (2016). How Far Does the Employment Standards Act 2000 Extend, and What Are the Gaps In Coverage? An Empirical Analysis of Archival and Statistical Data. Online: https://cirhr. library. utoronto. ca/sites/cirhr. library. utoronto. ca/files/research-projects/Vosko, 20.
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