Employee entitled to lieu time at termination, but didn’t keep accurate records
An Ontario worker has won his suit for unpaid overtime but isn’t seeing the cash because he didn’t keep a reliable record of the hours he worked.
In 1995, Orest Matiowski was hired as a tourism services officer by Lake of the Woods Business Incentive Corporation (LOWBIC), a not-for-profit corporation that provides community-based programs in Kenora, Ont. The position was paid by salary with the expectation overtime would be required as necessary, without extra compensation.
Matiowski’s duties soon changed and he became responsible for planning special events. He developed and oversaw numerous events and programs over several years, which often involved working long hours.
Matiowski kept track of the hours he worked 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.
On March 17, 2006, LOWBIC informed Matiowski it was eliminating its special events program and he would be terminated as of May 31, 2006. Other than the two-and-a-half months’ working notice, there was no severance package.
Demanded payment at termination for overtime
But Matiowski claimed LOWBIC knew he had been accumulating overtime and it told him he would be compensated with lieu time. He said he had only taken 18 hours of lieu time before his employment was terminated and without payment for the overtime, LOWBIC would receive the benefit of his extra hours when it terminated him. Matiowski filed a monetary compensation claim for the promised lieu time (worth more than $50,000).
LOWBIC argued Matiowski knew he would not be paid for overtime when he was hired and it also had no budget for it, which is why it had the lieu time policy. It also said Matiowski’s job duties were managerial in nature so he was excluded from being eligible for overtime.
The Ontario Superior Court of Justice 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. LOWBIC should have kept proper records on Matiowski’s overtime, said the court.
Because Matiowski wasn’t a manager, LOWBIC was responsible for paying him for extra hours under Ontario’s Employment Standards Act, found the court. Though substituting lieu time was acceptable while he was employed, LOWBIC was responsible for the unused overtime he had at the time of his termination. By failing to pay him, it violated the act.
Employee couldn’t prove amount of overtime
However, in a claim for overtime pay, the onus of proving the hours worked is on the employee. Matiowski recorded his overtime hours in a personal calendar, but it was found to be inaccurate. The calendar indicated nearly 3,000 hours of overtime worked but he estimated to the 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,” said the court. “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 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, it only awarded nominal damages of $1.
The small award was meant to be a “declaration of (Matiowski’s) rights and a minor deterrent to (LOWBIC),” said the court, 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,” said the court. It also said LOWBIC could be subject to fines for breaching the Employment Standards Act but that 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.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a sister publication to Canadian HR Reporter that looks at employment law from a business perspective. For more information, visit employmentlawtoday.com.
