Employee wins overtime suit — and gets $1

Terminated employee entitled to compensation for unused lieu time but couldn’t quantify his loss

An Ontario worker has won his suit for unpaid overtime but isn’t getting payment for it because he didn’t keep a reliable record of the hours he worked.

Orest Matiowski was hired as a tourism services officer on Sept. 1, 1995, by Lake of the Woods Business Incentive Corporation (LOWBIC), a not-for-profit corporation that provided community-based programs in Kenora, Ont. The position was paid by salary with the expectation overtime would be required as necessary without extra compensation.

Long hours spent on projects

Not long after he started, Matiowski’s duties changed from a tourism focus to being responsible for the planning of special events in the community. He developed and oversaw numerous events and programs in Kenora over several years, which often involved working long hours.

Matiowski kept track of the long hours he worked on a calendar and sometimes asked for time off to make up for the extra hours. LOWBIC usually granted this as it was the corporation’s policy to give lieu time since it couldn’t afford to pay overtime out of its fixed budget.

On March 17, 2006, LOWBIC informed Matiowski it was eliminating its special events program in the community and his employment would be terminated as of May 31, 2006. Other than the two-and-one-half months working notice, Matiowski didn’t receive a severance package.

Demanded payment at termination for overtime

Matiowski claimed LOWBIC knew he had been accumulating overtime and it told him he would be compensated by letting him take it as lieu time. However, he 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.

LOWBIC argued Matiowski knew he would not be paid for overtime as part of the position when he was hired and it also had no budget to pay for overtime, which is why it had the lieu time policy in the first place. It also said Matiowski’s job duties were managerial in nature and he was excluded from being paid for overtime.

The Ontario Superior Court of Justice referred to Ontario’s Employment Standards Act, which requires employers to pay overtime pay or give lieu time to any employee for hours of work in excess of 44 hours per week. The act also stipulates employees must be paid for any outstanding overtime when employment ends.

Not a manager

The court disagreed with LOWBIC’s contention Matiowski was a managerial employee, as he performed a wide range of duties. Although he supervised student workers at times, the majority of his duties were not managerial in nature. It found LOWBIC should have kept proper records on the overtime Matiowski worked.

The court found because Matiowski wasn’t a manager, LOWBIC was responsible for paying him for the unused overtime he had at the time of his termination. By failing to do so, it violated the Employment Standards Act.

Employee couldn’t prove amount of overtime hours worked

However, the court 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.

“While I accept that (Matiowski) worked extremely hard and regularly accumulated overtime, his oral evidence of the total hours banked when he was discharged is derived solely from estimates based upon an event by event reconstruction over a number of years,” the court said. “There is no independent evidence or documentation to corroborate (Matiowski’s) estimates.”

The court found while Matiowski had met the onus of proving he had suffered some loss, he couldn’t 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 one dollar.

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 see:

Matiowski v. Lake of the Woods Business Incentive Corp., 2008, CarswellOnt 6213 (Ont. S.C.J.).

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