The Ontario Labour Board dismissed an application by Bloomex Inc. to review an order demanding the payment of overdue overtime and termination pay to a former employee, E.C.
The original order issued by an Employment Standards Officer (ESO) found that E.C. had worked significant overtime between May and August 2022 without compensation and had been dismissed without notice in September 2022.
E.C. was hired by Bloomex, an online florist, in or around 2018. He was hired by his father, who worked in the marketing department. His most recent period of employment started on May 2, 2022. He was paid a salary of $48,000 per year — he worked remotely and his job was to develop client communication. On Aug. 5, 2022, he advised Bloomex that he was taking a stress leave, which started on Aug. 10, 2022. He has not been back to work since that time.
Disagreement about overtime
Issues around his employment included unpaid overtime and a disputed bonus. The company’s payroll professional said E.C. never raised concerns about unpaid overtime or bonuses with her, and that his employment contract details were incomplete.
E.C.’s father testified about a promised, but undocumented, bonus and the extensive hours he worked — including weekends. E.C.’s supervisor, though, mentioned there was no necessity for overtime in the role, despite evidence of after-hours work.
But he confirmed that E.C. frequently worked outside of regular business hours, receiving communications from him during these times, which he acknowledged out of politeness, rather than necessity.
“He did not recall ever telling (E.C.) not to work the additional hours he was working,” the Board said.
Bloomex contended that it had not violated the Employment Standards Act by failing to pay him, claiming there was no proof he worked beyond his contractual hours. However, the Labour Board cited lack of record keeping on Bloomex’s part and upheld the decision to compensate E.C. for overtime.
(The exact amounts in the order were not published in the Board ruling.)
It pointed to the earlier ruling of 2605853 Ontario Inc. (Paranthe Wali Gali 2) v. Balwant Rathour, 2021 CanLII 55128 (ON LRB). In that case, the Board rejected the employer’s claim that the worker’s records were “made up or otherwise self serving” because the employer could not provide any reliable records of hours of work.
“The employer filed no records of (E.C.’s) hours to disprove (E.C.)’s claim for overtime pay,” the Board said. “The employer has not met its onus of disproving that (E.C.) worked overtime, and in fact has provided evidence to support the finding that he did work overtime, and that the employer was aware of this fact. “
Constructive dismissal?
The Labour Board also concluded that E.C. was effectively constructively dismissed when Bloomex disabled his email and other work-related access, without communicating any plan for his return from stress leave or addressing his indefinite leave request.
“The employer chose not to respond in any way… it has taken an action, indirectly, to terminate (E.C.), and the assertation that he could return to work at any point is hollow,” the decision read, establishing that the lack of direct dismissal does not negate the employer’s responsibility.
“These actions, along with not filing a Report of Injury or Illness with the WSIB, signaled to the board that the employer’s claim that (E.C.) could return at any time was not substantiated, leading to the finding that (he) was effectively terminated,” it said.
Bonus denied
The Board dismissed E.C.’s claim for a bonus, agreeing with Bloomex that there was no concrete agreement or authority demonstrated to bind such a payment.
“There is no evidence before the Board that anyone with the requisite authority to bind the employer to pay a bonus concluded an agreement with (E.C.) to pay him a bonus,” it said, adding there was no evidence as to exactly how a bonus would have been calculated.
For more information, see Bloomex Inc. v Erik Camphaug, 2024 CanLII 29391 (ON LRB).
