Worker didn't make actual complaint, just threatened to make one before being dismissed
A Nova Scotia worker’s dismissal after making labour standards inquiries was not a reprisal under the province’s Labour Standards Code because the worker had not actually made a complaint under the code, the Nova Scotia Labour Board has ruled.
Christine Webb was hired as a cook and clerk in the convenience store at Spry Bay Campground and Cabins in Spry Bay, N.S., on June 10, 2012. There was no written contract of employment and the campground paid her minimum wage. Webb was responsible for serving customers in the store and preparing food for take-out orders during business hours, and clean-up duties such as washing dishes, sweeping, counting cash, balancing receipts and locking up at the end of the night. When she was hired, she was told she wouldn’t be paid for work done after the store closed, so she should complete the tasks before closing time. She was also told the cost of any breakages would be deducted from her pay.
The store operated from 10 a.m. to 10 p.m. during the months of June, July and August and Webb usually worked the afternoon shift until close. Her closing duties took some time and she wasn’t always able to complete them before closing, so she often left the store anywhere from 11 minutes to 43 minutes after closing.
Early in the morning of Aug. 15, 2013, Webb emailed the campground owners and told them she had been in contact with the Nova Scotia Labour Standards Department. She learned that her holiday pay had been calculated incorrectly, she should be paid for the time spent in the store after closing that she needed to complete her duties, and deductions for breakages were not permitted. Webb warned the owners that she could make a complaint to the Department of Labour but would give them an opportunity to voluntarily pay her what she was owed first.
Webb went to work at the store that afternoon and, shortly before closing time, the owners gave her a letter advising that she was permanently laid off, effective immediately. They gave Webb one week’s pay in lieu of notice.
The next day, Webb filed a labour standards complaint claiming outstanding holiday pay, wages for unpaid hours of work and discriminatory dismissal — a reprisal for investigating her workplace rights with the Labour Standards Department. On June 11, 2014, the Nova Scotia Director of Labour Standards ordered the campground to pay Webb seven weeks of pay in lieu of notice as stipulated under the provincial Labour Standards Code, slightly less than $200 in vacation pay, and $64.37 in wages for unpaid hours of work. The total to which Webb was entitled was $2,431.49.
The campground owners appealed the decision, though they acknowledged they owed Webb holiday pay. They maintained Webb should have been able to complete her tasks during normal work hours, noting Webb’s replacement was able to consistently leave the store within 10 minutes of closing. They also claimed if they had known Webb was staying so late, they would have made adjustments to fix the situation or give Webb time off to make up for the extra time spent at work after closing.
The owners also said they dismissed Webb due to poor work performance. They claimed the decision had been made before they received Webb’s email and were actively trying to find a replacement before firing her.
The board noted that the code didn’t allow contracting out of its minimum provisions, such as paying employees for the hours they work. It found there was evidence Webb was at the workplace after regular hours and she often did work-related tasks during that time. The store’s cash register reports — the last task done before locking up — showed Webb worked between 15 and 30 minutes after closing 11 times and between 30 and 60 minutes twice. Since the owners had these reports, they should have known Webb was often working late, but there was no attempt to give her lieu time. As a result, the board found Webb was entitled to 7.5 hours’ worth of unpaid wages, equal to $80.34 with four per cent vacation pay.
The board also found there was some credence to the owners’ claim they were not happy with Webb’s performance and were attempting to find a replacement worker. However, they continued to employ her while looking, and it was likely Webb would have continued to work for some time if she hadn’t sent the email. By dismissing Webb the same day as they received her email discussing her labour standards investigation, the two events were linked and “there was a direct and substantial connection” between Webb’s dismissal and her raising of a possible labour standards complaint, said the board.
However, the board determined that Nova Scotia’s code was narrower than some other jurisdictions when it came to reprisals, and only prohibited dismissal related to the employee filing a complaint. Since Webb hadn’t filed a complaint and had only made inquiries, there was no contravention of the code. As a result, the one week’s pay in lieu of notice was appropriate for an employee of less than two years, said the board.
