Company didn't track hours worked; claimed difficulty in monitoring worker
A British Columbia employer’s appeal of an order to pay unpaid wages that was unsupported by payroll records or other documents has been dismissed by the province’s Employment Standards Tribunal.
The worker was a salesperson with LocalMotive Organic Delivery, a grocery business in Okanagan Falls, BC. She started her employment with LocalMotive on March 26, 2021, working from home with instructions from the company regarding the work she was to do. The company sent instructions by text message and email on a regular basis.
The worker kept a handwritten record of the hours she worked, although LocalMotive did not monitor or record when she was working.
The worker was assigned to work on LocalMotive’s website for part of her employment. When she submitted the hours that she had spent on the website, LocalMotive took the position that the number of hours worked did not mesh with the quality of the work performed and refused to pay her.
After the dispute, the worker’s employment with LocalMotive ended on May 7, just over five weeks from her start date.
Unpaid wages claim
Two weeks later, the worker made an employment standards claim alleging that LocalMotive breached the BC Employment Standards Act (ESA) by failing to pay her wages and vacation pay.
A delegate of the BC director of employment standards investigated and the worker provided her handwritten records of her hours worked. LocalMotive was unable to provide any such records and maintained that the quality and quantity of the worker was subpar. The company didn’t challenge the number of hours worked.
The investigation was completed and an adjudicating delegate accepted the worker’s record of her hours worked because it was the best – and only – evidence on how much the worker worked. Although the company had a problem with the quantity and quality of work performed during those hours, those were not relevant when determining wages owed to the employee, said the delegate.
LocalMotive was ordered to pay the worker more than $800 in unpaid wages and vacation pay for work she performed. The company also had to pay three administrative penalties of $500 each for contraventions of three sections of the ESA – relating to payment of wages within 48 hours of termination, keeping payroll records, and vacation pay at termination, respectively.
Difficulty monitoring remote employees
LocalMotive appealed, with the owner arguing that his side of the story wasn’t considered properly and “the context of the situation with civic lockdowns [due to the pandemic] and keeping tabs on staff working remotely were not given due consideration for an employer that was just trying to give a job opportunity to someone.” The company also said evidence from phone conversations hadn’t been considered in the investigation and evidence had become available that wasn’t available at the time of the determination. However, it didn’t specify what any of the evidence was.
The tribunal noted that a party appealing an employment standards determination has the burden to demonstrate why the determination should be interfered with. It found that LocalMotive didn’t meet that burden as it failed to elaborate on what evidence the delegate didn’t consider or had become available.
The tribunal also found that the company didn’t provide any supporting details for its argument that the pandemic-related lockdowns and the difficulty of monitoring remote employees made it more difficult to maintain payroll records. As a result, the tribunal dismissed the company’s appeal and confirmed the order for unpaid wages and vacation pay along with the administrative penalties. See Thomas P.D. Tumbach (Re), 2023 BCEST 62.
