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Full Story:
There have been several high profile law suits filed in the last couple of years involving an employer’s alleged failure to pay statutory overtime pay.
In 2007, a head teller at a Toronto branch of the Canadian Imperial Bank of Commerce (CIBC) launched a $600-million class-action lawsuit against her employer for unpaid overtime. The case has not been resolved.
Also in 2007, the law firm of Juroviesky and Ricci LLP filed a $50 million class-action case in Ontario against KPMG claiming that the employer violated overtime provisions under the Ontario Employment Standards Act and the employment contract, specifically that overtime compensation for employees of KPMG were wrongfully denied, or employees were never properly compensated for their overtime work above 44 hours a week. A settlement was approved by the Court in August 2008 and is expected to cost KPMG as much as $10-million.
The third case involves Orest Matiowski, a tourism services officer, and Lake of the Woods Business Incentive Corporation, a not-for profit organization that provided community-based programs in Kenora, Ontario. The position was paid by salary with the expectation that overtime would be required as necessary without extra compensation.
Matiowski’s position required that he work long hours. Matiowski kept track of the hours he worked on a calendar and sometimes asked for time off to make up for the extra hours. LOWBIC usually granted these requests.
Matiowski was terminated in May 2006 because of program cut backs. Other than the two-and-one-half months working notice, Matiowski did not receive a severance package.
Matiowski said he had worked 3,300 hours of overtime between January 2000 and May 2006 but had only taken 18 hours of lieu time before his employment was terminated. Without payment for the overtime, LOWBIC would receive the benefit of his extra hours when it terminated him, he said. Matiowski filed a claim for monetary compensation for the overtime he had accumulated but not taken as lieu time at the time of his termination.
The Ontario Superior Court of Justice said in an overtime claim, the onus of proving the hours worked was on the employee. Matiowski had his calendar where he recorded his overtime hours, but it was found to be inaccurate. The calendar indicated nearly 3,000 hours of overtime but he estimated in court he worked 1,338 overtime hours between 2000 and 2005.
The court found while Matiowski had met the onus of proving he had suffered some loss, he could not present evidence to quantify the loss. It ruled LOWBIC was responsible for the unpaid overtime due to Matiowski when he was terminated, but because of the lack of evidence on the amount of overtime Matiowski had worked, it only awarded nominal damages of $1.00.
The court said the small award was meant to be a “declaration of (Matiowski’s) rights and a minor deterrent to (LOWBIC),” and a larger award would risk giving compensation for a loss it found difficult to quantify.
“A court cannot accept speculation or guesses but must receive evidence that has sufficient validity on which to found its judgment,” the court said. It also said LOWBIC could be subject to fines for breaching the Employment Standards Act but it would have to be pursued with the Ministry of Labour.
For more information on this case or to discuss how this may impact your organization and steps that you can take to ensure legal compliance, please contact Dave Hagel at 905-637-5673 or at dave@highperformancehr.ca
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