A student of mine pointed out an interesting decision of the Ontario Superior Court from last summer that I had not seen before. It’s called Matioski v. Lake of Woods Business Incentive Corp. The employee worked lots of overtime, a fact the employer did not dispute. However, the employer argued that the employee had agreed that he would not be paid for overtime, but would instead receive time of in lieu. That is permitted under the Ontario Employment Standards Act, in Section 22(7), which says that, if the employee agrees, time off equal to time and half can be taken rather than OT pay.
The trouble in this case was that the employee was dismissed before he could take the time off in lieu which he has accumulated. So now what happens? Well, the Act deals with that possibility too, in section 22(8):
(8) If the employment of an employee ends before the paid time off is taken under subsection (7), the employer shall pay the employee overtime pay for the overtime hours that were worked in accordance with subsection 11 (5)
That seems to say very clearly that the employee here is entitled to be paid his OT, since he can no longer take it as time off. That makes sense, because otherwise an employer could allow someone to accrue lots of time off, knowing they will never have to actually give the employee that time.
The problem for the employee in this case is that he did not keep clear records of how much OT he actually worked. He guestimated it to be in the range of 1300 hours over 5 years, but he couldn’t prove that. Of course, the employer has a legal obligation to keep track of hours worked, including overtime hours (in section 15 of the ESA), and the court here rules that the employer breached that legal requirement. The central purpose of that section is to ensure that employers pay attention to their employees’ working hours and don’t later try and play dumb about hours worked. So you might think that, given that the employer admits the employee worked lots of OT, and that it nevertheless failed to track that OT, that it ought to have an obligation to pay the employee at least some OT.
You’d be wrong, apparently.
The Plaintiff has the onus of proving the number of hours worked on a balance of probabilities… I cannot say that the evidence of the Plaintiff regarding hours of overtime he worked meets this standard. While it is regrettable that proper records were not kept by either party, this court cannot accept estimates without some assurance of relative accuracy.
“Regrettable”? Illegal is the word I think the Court was looking for–illegal that the employer did not keep these records. According to the Court, however, the employee must prove how much OT he worked, and if he can’t, the employer is off the hook. That’s the case even though everyone agreed that the employee worked lots of OT for which he was not paid! Here, the Court ordered the employer to pay a token $1 to the employee.
I was always taught, and argued myself occasionally in hearings, that the fact that calculating damages may be difficult sometimes, is not an excuse for a court to refuse to do so. The Court needs to estimate as best it can, based on the evidence presented. Since the employer conceded that there was quite a lot of unpaid OT, couldn’t the court have taken a conservative, although reasonable, estimate of the amount, rather than simply dismissing the entire claim (except $1)?
Or do you agree that an employer should not be obligated to pay OT when it fails to keep records of hours worked and the employee is unable to prove the precise number of OT hours on a ‘balance of probabilities”?
