Ordered to pay unpaid vacation pay

Employer failed to keep adequate records on payments to an employee

James Guiggey first went to work for Rick Brewer, carrying on business under the registered name of Better Homes & Renovations, as a carpenter’s helper in late April, early May 2000. He was laid off in December 2000. In March 2001 he was re-employed by Mr. Brewer and worked until May 17, 2001. During the course of his employment Mr. Guiggey earned $10 per hour.

In October 2001 Mr. Guiggey brought a complaint against his former employer to the New Brunswick Employment Standards Branch. The complaint alleged that during the course of his employment, Mr. Brewer failed to pay him any vacation pay.

As a result of the complaint an employment standards officer, Ginette Savoie, commenced an investigation. Based on her investigation she determined that Mr. Brewer had violated the Employment Standards Act and ordered him to pay Mr. Guiggey the amount of $490.02 representing unpaid vacation pay. This order was issued on Jan. 2, 2002.

On Jan. 7, 2002, Mr. Brewer requested that the matter be referred to the Labour and Employment Board. At the hearing Mr. Brewer was self- represented and testified on his own behalf. In addition both Ms. Savoie and Mr. Guiggey testified at the hearing.

Ms. Savoie gave evidence about her investigation of the complaint. At her request Mr. Brewer provided a copy of a payroll record pertaining to Mr. Guiggey’s employment from March to May 2001. After a meeting with Mr. Brewer, Ms. Savoie requested copies of the records for the period of employment from May to December 2000 and additional copies of the 2001 employment period. The second set of records provided by Mr. Brewer included a hand-written (by Mr. Brewer) notation to indicate that vacation pay was included in each stated rate of wages.

Ms. Savoie testified that the inconsistency between the first and second set of records led her to suspect that the contention that vacation pay was by agreement included within the wage rate had been fabricated after the fact of the complaint having been made.

Mr. Brewer argued that it was understood by Mr. Guiggey and all but one of the other employees that vacation pay was included within the rate of pay for each employee. According to Mr. Brewer, Mr. Guiggey’s hourly rate of $10 indicated a wage of $9.60 plus $0.40 vacation pay. However this supposed understanding was in conflict with Mr. Brewer’s testimony that on several occasions Mr. Guiggey asked about vacation pay entitlement, to which Mr. Brewer responded that he was not required to pay vacation pay because his business was small.

Mr. Brewer raised the fact that during the course of Mr. Guiggey’s employment it was not unusual for Mr. Brewer to pay Mr. Guiggey for a full week of work even when Mr. Guiggey missed a few days. There was a significant reference to the fact that at the time of the layoff in December 2000, when he knew Mr. Guiggey was planning to take a course at the community college, Mr. Brewer paid Mr. Guiggey $400 more than his earned wages. Mr. Brewer denied that this additional money was a Christmas bonus. On cross-examination Mr. Brewer tried to argue that the additional payment of $400 incorporated any amount of vacation pay owing.

On the issue of the payment of the additional $400 in December 2000, the board held that this was a reflection of the good will that existed between the parties at that time, an action of generosity on behalf of Mr. Brewer.

The board found that the records kept by Mr. Brewer did not conform with the requirements of section 60 of the Employment Standards Act, which requires the keeping of a record of “…any vacation pay due or paid to the employee.” The board relied on an earlier decision of the employment standards tribunal which held that “the failure to keep adequate records is fatal to the employer’s case where the stories are conflicting.”

Having found that the records did not conform with the requirements of the Act, the board upheld and affirmed the order of the employment standards officer.

For more information:

Guiggey v. Brewer, New Brunswick Labour and Employment Board, File No. ES-002-02, Mar. 1/02.

Latest stories