Employee files complaint seeking wages, overtime, vacation pay after resigning
An Alberta employer that agreed to pay a security guard a flat monthly fee of $3,000 has been ordered to pay a total of $4,860, including $4,418 in unpaid wages, overtime and vacation pay, after failing to keep a record of hours worked. Vice-Chair Karen Scott of the Alberta Labour Relations Board found the worker’s handwritten notebook more reliable than the employer’s memory-based calculations.
ARH Developments, operating as ARH Holdings, hired Mohammed Abdulb Elrateb as a security guard in September 2024 to replace another worker going on vacation. The parties verbally agreed on $3,000 for the month but never discussed an hourly wage. When Elrateb resigned after one month without being paid, he filed a complaint seeking hourly wages, overtime, and vacation pay based on the hours he had tracked.
The employer argued Elrateb was an independent contractor paid a flat fee. Alternatively, the company claimed he worked fewer hours than alleged. But ARH kept no time records. When the Employment Standards Officer investigated, the company's representative created a timesheet from memory and text messages. It was too late.
Security guard's notebook becomes key evidence
Elrateb recorded his shifts in a notebook, documenting that he worked from 9:00 p.m. to 7:00 a.m. on 27 days in September, totaling 255.25 hours. He also referenced text messages exchanged with his supervisor during shifts.
The employer's witness, Abu Said, who hired Elrateb, testified that the shifts ended at 5:00 a.m., not 7:00 a.m., and that the worker missed some days. However, Said admitted his memory was poor due to time elapsed.
The appeal board preferred Elrateb's evidence. Said had testified that the previous security guard, Malik, worked 9:00 p.m. to 7:00 a.m. shifts. The board found no explanation why Elrateb's replacement shifts would be shorter. The decision noted that "the Respondent was the one at work. Said was not at the worksite. The Respondent had the best knowledge of when he started and ended his shift, and he recorded this in the Notebook contemporaneously."
Flat fee cannot override employment standards
The board also determined that Elrateb was an employee, not an independent contractor, based on the employer's control over work schedules, supervision, and provision of building keys. This triggered mandatory protections under Alberta's Employment Standards Code.
The decision emphasized that parties cannot contract out of minimum standards: "An agreement that [the Code] or a provision of it does not apply…is against public policy and void."
Even though both parties agreed on $3,000 monthly, the board calculated entitlements based on actual hours worked at Alberta's minimum wage of $15 per hour. This yielded $2,880 in regular wages for 192 hours, plus $1,423 in overtime pay for 63.25 overtime hours, and $115.20 in vacation pay.
The appeal board cited the employer's statutory obligation, noting that under section 14(1)(a) of the Code, an employer must "keep an up-to-date record" of the "regular and overtime hours of work for each work day" for each employee. The decision warned: "Where an employer fails to keep such records, the Appeal Body will have little choice but to accept the hours claimed by the employee."
