Employment Standards Trial

Fact Scenario

Andrew began working for Clarity Printing & Design on July 1, 2020. He was hired as a Graphic Design Associate where he was responsible for designing and creating printable items for clients such as booklets and flyers. In addition to his graphic design duties, he tracked customer feedback and entered this information into a database. Andrew was earning $880 per week plus vacation pay.

Mindy is the general manager of Clarity Printing & Design. On July 15, 2020, Mindy and Andrew signed an employment agreement which stated Andrew would be paid "time in lieu" for any overtime that he worked.

It was a very busy time for Clarity Printing & Design and Andrew worked many hours of overtime. From July 2020 until the end of December 2020, Andrew worked a total of 180 hours of overtime. In January, Andrew took two weeks off from work and used 75 hours of lieu time and now has 105 hours remaining.

On February 1, 2021, Andrew was promoted to Graphic Design Accounts Manager. In addition to the graphic design work that he previously performed, Andrew is now also responsible for recording employee absences and lateness, he then reports this information to Mindy. He is also the person that sales staff report to and handles customer complaints but only when Mindy is not available (i.e., she is on lunch). Mindy makes all decisions regarding discipline and termination.

Andrew now earns $980 per week, plus vacation pay.

Andrew finds that the pace of work has increased. He is now working 60 hours per week on average. From April 1, 2021, to December 31, 2021, Andrew did not take any time off work and was working seven days a week, every week. According to Clarity Printing & Design policy, Andrew is no longer entitled to payment of overtime or any lieu time because he is a manager. Mindy promised to pay out Andrew's banked overtime from his previous position over the next twelve months.

Andrew finds it very difficult to work on public holidays since he is a single parent, he would like to spend time with his children, but he needs the money and is appreciative that his company gives him more than straight time for working on public holidays even if they don't pay him overtime.

It was so busy in December 2021 that Andrew was told he could not leave the store when his son suddenly collapsed at school and was rushed to hospital. Mindy said she would have liked to have Andrew go to his son, but she needed him to a big project for a well-paying client. Thankfully the child was OK, Andrew's sister was able to attend the child and Andrew was able to continue to work.

On October 15, 2021, Clarity Printing & Design' main client Maple Leaf Sports (MLS) announced that it is no longer going to use Clarity Printing & Design' services. MLS's business accounts for 40% of Clarity Printing & Design' sales. Although Clarity Printing & Design is trying to gain new customers, the loss of this business has been enormous!

To avoid huge costs of terminating the employment of its employees, Clarity Printing & Design has decided to embark on a new strategy. On November 1, 2021, it announced that, effective immediately, all managers will have a 40% pay cut. Andrew will therefore now earn only $588.00 per week.

On November 15, 2021, Andrew was also informed that he was required to agree to a new oral agreement permitting Clarity Printing & Design to eliminate any unused vacation. Given that it was a busy year, Andrew never had the chance to use any of his promised three weeks of his vacation.

Mindy has also informed Andrew that the company will no longer be paying out his earned overtime from his previous position. Up to December 1, 2021, Clarity Printing & Design had paid Andrew a total of $1,900.00 in overtime pay.

At the beginning of December 2021, Mindy decided that all employees must receive their pay via e-transfer into their bank account. Andrew had always had his pay delivered by paper cheque, but now Mindy has implemented the new policy and employees who do not use the e-transfer method will have $10 per pay deducted to cover the administration costs. Andrew and three other employees are not able to use direct deposit so they will each be subject to this deduction.

Unfortunately, things went from bad to worse! On December 10, 2021, Clarity Printing & Design lost its second major client which accounted for 10% of Clarity Printing & Design' business.

On December 17, 2021, all 150 employees of Clarity Printing & Design were told by their Managers that their employment would be terminated immediately. Andrew was provided with a cheque for 2 weeks termination pay in lieu of notice. Clarity Printing & Design filed for bankruptcy on January 4, 2022, and Andrew is unable to recover any additional monies owing to him.

Andrew 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 each complaint regarding breach(es) of the Employment Standards Act, 2000 that Andrew has encountered.

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 Ontario case law and tribunal results. Outline any tests, if applicable. The text has examples of cases with similar fact scenarios which you can search for using online resources such as canlii.org to find more examples. Each pertinent issue should be in its own section.

For this assignment, you will need to show the calculation for how much money Andrew is owed for each breach - for example, overtime and why (i.e., state the section of the ESA that is breached and show the calculation).

Conclusion:

This is where you draft your conclusion and state the remedy sought. In this case, you are asking the tribunal to award Andrew an appropriate remedy. You need to present the "total amount" that he is entitled to (HINT - this is an amount over $35,000)

Your report should be four to seven pages to clearly outline your position and present your case.