Seasonal worker's claim for unpaid wages fails

The Manitoba Labour Board has dismissed an appeal by a worker who alleged unpaid wages and discrepancies in her record of employment (ROE).

Livingstone Outdoor was an outdoor décor company in Brandon, Man., that operated a seasonal greenhouse and garden centre. The greenhouse and garden centre opened in the spring and closed during winter, with the opening and closing dates varying each year, depending on the weather. When the closing date was determined, the company provided its seasonal employees with a layoff notice and an invitation to return to work the following spring.

Livingstone hired the worker in April 2022, initially as an administrative assistant with an employment agreement stipulating that she work three days in the office each week. One month later, with the greenhouse open, she transitioned to a greenhouse associate role. The employment agreement didn’t specify that her role was seasonal.

Employees were told that they would get paid for the hours they were scheduled to work and if they arrived earlier, they wouldn’t be paid until their scheduled start time. The store manager informed the worker verbally. The worker was scheduled to start work at 8:30 a.m. and signed in through a machine that recorded her hours. Her schedule fluctuated based on operational requirements.

Payroll issues corrected

Early in the worker’s employment, the worker said she wasn’t being paid appropriately and raised the issue with management. Her pay was eventually corrected and she didn’t make any other requests for corrections.

According to the worker, she was often asked to start earlier and work through her lunch breaks, leading to hours for which she wasn’t paid.

On Sept. 9, Livingstone informed the worker that the seasonal shutdown of the greenhouse and garden centre would be Sept. 30. An HR employee met with the worker and her spouse – who was there to ensure she understood everything because she was primarily Spanish-speaking – on Sept. 9 and 12. At both meetings, the HR employee told the worker that she would be laid off on Sept. 30 and would be recalled in the spring.

The HR employee informed the worker that she would have enough hours to apply for employment insurance EI benefits, as the temporary requirement during the pandemic was 420 hours. However, the temporary requirement expired on Sept. 26, so by the time of the layoff date, the minimum requirement for EI was 665 hours. Livingstone offered the worker an opportunity to work additional hours, but the worker declined.

According to the worker, the HR employee wrote down that she had worked 715 hours, so she was surprised to receive an ROE that showed fewer hours that were below the minimum for EI benefits. However, the company issued two ROEs – one for her greenhouse hours and one for her office hours.

Claim for unpaid wages

In October, the worker filed a claim for wages with the Manitoba Employment Standards Branch. She claimed that she wasn’t paid for working during her lunch breaks and arriving earlier for work, and that she was a permanent employee who was owed wages from her layoff date to her expected recall in April 2023. She also alleged that her ROE was inaccurate.

The branch dismissed her claim and she appealed, with the matter going before the board.

The worker later relocated and, as a result, Livingstone didn’t recall her in the spring of 2023.

Livingstone countered that the worker was a seasonal employee who was provided appropriate notice of layoff and was compensated for all hours worked.

The board found that the worker was employed on a seasonal basis and received adequate notice of the layoff. As a seasonal employee, she had a reasonable expectation of returning to work in the spring and her period of employment would have continued during the off-season. However, she had a very short tenure that only entitled her to one week of notice, said the board in finding that Livingstone provided sufficient notice of termination under The Employment Standards Code.

Payroll records unchallenged

As for the worker’s allegation that she had unpaid hours related to early arrivals and missed lunch breaks, the board found that she didn’t provide sufficient evidence to support these claims. The company’s payroll records indicated that she was paid for all recorded hours worked and the payroll issues she had raised during her employment were apparently resolved, as she didn’t raise any more concerns until after her layoff, said the board.

The board also found that the ROE reflected her total hours worked and matched payroll documentation. While the worker argued for corrections to her hours, the evidence provided did not substantiate her claim of more hours worked. The board found no discrepancies in the two ROEs issued by Livingstone.

The Board dismissed the appeal, concluding that the appellant had received appropriate compensation and notice under code and emphasizing the necessity for employees to raise wage-related concerns promptly to encourage timely resolutions. See Q.W. v. Berg Investments Ltd. T/a Livingstone Outdoor, 2024 CanLII 105191.