Reference no: EM133438961
Fact Scenario
Abdul began working for BEF Company on February 1, 2018. He was hired as a customer service representative where he processed customer complaints and entered them into a database. Abdul was earning $880 per week, not including vacation pay.
Andrea is the general manager of BEF. On February 7, 2018, Andrea and Abdul signed an employment agreement. In the agreement, Abdul would be paid time in lieu for any overtime that he worked. It was a very busy time for BEF and Abdul worked many hours of overtime. From February until the end of June, 2018, Abdul worked a total of 180 hours of overtime. In June, Abdul took a week off and used 40 hours of lieu time and therefore has 140 hours remaining.
On July 1, 2018, Abdul was promoted to customer service manager. In addition to keeping some of the data entry work that he previously performed, Abdul is also responsible for recording employee absences and lateness in his work area. He reports this information to Andrea and Andrea makes the decision regarding discipline and termination. Abdul now earns $968 per week, not including vacation pay.
According to BEF Company policy, Abdul is no longer entitled to payment of overtime or any lieu time because he is a manager. Andrea promised to pay out Abdul's banked overtime from his previous position over the next twelve months.
Abdul finds that the pace of work has increased. He is now working 60 hours per week on average. From July 1, 2018 to June 17, 2019, Abdul did not have any time off work. He is working seven days a week, every week. As a manager he is not paid overtime but his employer does pay him time and a half on public holidays. It is difficult to work on public holidays since his children are home; he would like to spend time with them but he needs the money and is appreciative that his company gives him more than straight time for public holidays.
It was so busy at work that Abdul could not take time off from work when he had a very high fever. He collapsed in the office and Andrea told him to rest in the sick room for the day. Andrea would have liked to have Abdul go home but she needed him at work. Thankfully, his fever subsided and he was able to work the next day.
At the beginning of December, Andrea noticed that a computer near Abdul's workstation had been vandalized. Although Andrea could not determine who broke the computer, she had the pay of the 10 employees whose workstations are closest to the computer docked for the damage. Abdul's pay was reduced by $150 to cover the damage.
On April 15, 2019, BEF's main client GHI Company announced that it is no longer going to use BEF's services. GHI's business accounts for 40% of BEF's sales. Although BEF is trying to gain new customers, the loss of business has been enormous!
To avoid huge costs of terminating the employment of its employees, BEF has decided to embark on a new strategy. On May 1, 2019, it announced that, effective immediately, all company health benefits were eliminated. In addition, all managers will have a 25% pay cut. Abdul will therefore earn only $629.20 per week.
At this point, Andrea informed Abdul that the company will no longer be paying out his earned overtime from his previous position. From February 2018 to May 1, 2019, BEF had paid Abdul a total of $2640 in overtime pay.
On June 5, 2019, Abdul was also informed that he was required to agree to a new oral agreement permitting BEF Company to eliminate any unused vacation. Given that it was a busy year, Abdul never had the chance to use any of his three weeks of his vacation.
Unfortunately, things went from bad to worse! On June 15, 2019, BEF lost its second major client which accounted for 10% of BEF's business.
On June 17, 2019, all 400 employees of BEF Company were informed that their employment would be terminated immediately. Abdul was provided with 2 weeks termination pay in lieu of notice via direct deposit to his bank account. However, BEF Company filed for bankruptcy on June 24, 2019 and Abdul was unable to recover any additional monies owing to him.
Abdul has approached you for help. Your job is to present his case to the Employment Standards Tribunal.
Assignment
You are to provide a written report in the following format:
Summary of Issues:
this is where you summarize the complaints under the Employment Standards Act, 2000 that Abdul has
Issues:
here you provide details of each complaint. You should make reference to the applicable section(s) of the Employment Standards Act, 2000 and provide examples of relevant case law. Outline any tests, if applicable. The text has examples of cases with similar fact scenarios. Use online resources such as canlii.org to find more examples. Separate into subsections for each pertinent issue.
Conclusion:
this is where you draft your conclusion and state the remedy sought. In this case, you are asking the tribunal to award Abdul an appropriate remedy.