Tire worker involved in hit-and-run accident with security guard
This instalment of You Make the Call takes a look at whether or not an employer can withhold pay from a fired employee to pay for damages he caused.
Streffen Tomilson started working for Lutes Mountain Tire Ltd. in Moncton, N.B. in November 2005. He was hired to install tires on cars and was paid $10 per hour. Between the start of his employment and his termination in December 2005, he worked a total of 380.5 hours. In the last two weeks of his employment, he worked 68 hours.
Although a good worker, sometime between Christmas and New Year’s Eve he and a fellow worker were involved in an incident that caused Lute Mountain Tire to immediately fire both individuals.
One night, the employer got a call from the local police station advising that Tomilson and his co-worker were in custody. The workers, while driving the employer’s service truck, were involved in a hit-and-run accident.
Apparently the two employees and a third individual drove through a parking lot and opened the door of the vehicle as they passed a security guard. This caused the security guard to be knocked off his feet.
The incident caused $690 in damage to the employer’s vehicle. Additionally, the company agreed to settle with the security guard, who was threatening to sue for damages. The company paid the guard $1,500.
The employer fired Tomilson and did not pay him for his last 68 hours of work, representing $680. Additionally, the employer calculated the amount of vacation pay owed to him as $155.80, from which it deducted a further $90. These deductions, which amounted to $770, were designed to reimburse the employer for what it considered Tomilson's share.
You make the call
Was the employer justified in withholding the pay?
OR
Should it have paid the amounts to the fired employee?
If you said the employer should have paid the amounts to the fired employee, you’re right. While the New Brunswick Labour and Employment Board was sympathetic to the employer’s position, it said that under the province’s Employment Standards Act the worker was entitled to the pay.
Section 37 of the act requires an employer to pay an employee “all outstanding pay” no later than 21 days after the last day the employee was employed.
In Hutchins and Atlantic Provincial Security Guard Service Ltd., the board discussed the issue of when an employer may deduct wages. The board said such deductions must be carefully restricted in order to maintain the overall objective of the act. The board concluded that such deductions would only be allowed where there is:
•clear and explicit written authority signed by the employee;
•a practice over time of the employer making such deductions;
•clear undisputed oral agreement; or
•a clear economic benefit accruing to the employee from the employer.
While it was sympathetic to the employer in this case, none of the criteria in Hutchins applied. Therefore, Tomilson was entitled to his money.
It ordered Lutes Mountain Tire to pay Tomilson $766.40, representing $680 for unpaid wages and $86.40 for unpaid vacation pay.
For more information see:
• Tomilson v. Lutes Mountain Tire Ltd., 2006 CarswellNB 333 (N.B. Labour & Employment Bd.)
Streffen Tomilson started working for Lutes Mountain Tire Ltd. in Moncton, N.B. in November 2005. He was hired to install tires on cars and was paid $10 per hour. Between the start of his employment and his termination in December 2005, he worked a total of 380.5 hours. In the last two weeks of his employment, he worked 68 hours.
Although a good worker, sometime between Christmas and New Year’s Eve he and a fellow worker were involved in an incident that caused Lute Mountain Tire to immediately fire both individuals.
One night, the employer got a call from the local police station advising that Tomilson and his co-worker were in custody. The workers, while driving the employer’s service truck, were involved in a hit-and-run accident.
Apparently the two employees and a third individual drove through a parking lot and opened the door of the vehicle as they passed a security guard. This caused the security guard to be knocked off his feet.
The incident caused $690 in damage to the employer’s vehicle. Additionally, the company agreed to settle with the security guard, who was threatening to sue for damages. The company paid the guard $1,500.
The employer fired Tomilson and did not pay him for his last 68 hours of work, representing $680. Additionally, the employer calculated the amount of vacation pay owed to him as $155.80, from which it deducted a further $90. These deductions, which amounted to $770, were designed to reimburse the employer for what it considered Tomilson's share.
You make the call
Was the employer justified in withholding the pay?
OR
Should it have paid the amounts to the fired employee?
If you said the employer should have paid the amounts to the fired employee, you’re right. While the New Brunswick Labour and Employment Board was sympathetic to the employer’s position, it said that under the province’s Employment Standards Act the worker was entitled to the pay.
Section 37 of the act requires an employer to pay an employee “all outstanding pay” no later than 21 days after the last day the employee was employed.
In Hutchins and Atlantic Provincial Security Guard Service Ltd., the board discussed the issue of when an employer may deduct wages. The board said such deductions must be carefully restricted in order to maintain the overall objective of the act. The board concluded that such deductions would only be allowed where there is:
•clear and explicit written authority signed by the employee;
•a practice over time of the employer making such deductions;
•clear undisputed oral agreement; or
•a clear economic benefit accruing to the employee from the employer.
While it was sympathetic to the employer in this case, none of the criteria in Hutchins applied. Therefore, Tomilson was entitled to his money.
It ordered Lutes Mountain Tire to pay Tomilson $766.40, representing $680 for unpaid wages and $86.40 for unpaid vacation pay.
For more information see:
• Tomilson v. Lutes Mountain Tire Ltd., 2006 CarswellNB 333 (N.B. Labour & Employment Bd.)
