Canadian Employment Law Today

©2018 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GST #897176350 Published biweekly 22 times a year Subscription rate: $308 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: customersupport. legaltaxcanada@tr.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com Sales Manager: Paul Burton Email: paul.burton@thomsonreuters.com Phone: (416) 649-9928 Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 YOU MAKE THE CALL Was the dental clinic entitled to withhold the worker's last paycheque? OR Was the worker entitled to her last paycheque? Employer wants payback with worker's last paycheque THIS INSTALMENT of You Make the Call features an offi ce manager who had her fi nal paycheque withheld after she quit. Sanjeeta ibault worked as an offi ce manager for Smiles on Sparks, an Ottawa dental clinic operated by Halpin Dentistry Professional Corporation, starting in Octo- ber 2013. ibault had various duties around the clinic, including managing payroll. In January 2014, the clinic implemented an electronic pay system in which employ- ees logged their start and end times as well as lunch breaks on every shift by computer. As offi ce manager, ibault was the administra- tor of the system, so she sometimes had to login for others to correct errors or as her- self to correct her own errors in the system. e only other person who had access to the administrative side of the system was the dentist who owned the clinic and he only ac- cessed it occasionally. ibault printed out reports showing the hours each employee worked and calculated their wages and de- ductions for their paycheques. e dentist then reviewed the documents and signed the cheques. In December 2013, the dentist agreed to an increase in ibault's wages, which she added into the pay system. ibault imple- mented another raise in January 2015 after her workload increased, but the dentist de- nied approving this raise. ibault went on maternity leave on Dec. 1, 2015, but sometimes came into the offi ce. She said she did some work during this time, though the dentist believed she was mainly socializing. She returned to work in July 2016, claiming the dentist asked her to come back early. She entered another raise to her wages in the pay system, which she claimed was the clinic's inducement to return early. After ibault returned from her mater- nity leave, the dentist grew suspicious when she claimed he owed her money but didn't explain why. He went into the pay system and reviewed ibault's hours, which led to the discovery that she had increased her wage rate without his approval. He changed the password to the system and confronted ibault. Two weeks later, ibault didn't report to work. She phoned another employee at the clinic and said she wouldn't be returning. e dentist reviewed the pay records some more and discovered what he believed were manipulations of the time clock, including: • 66 work days where ibault either didn't register a lunch break or a very short one a few seconds long, though she took breaks between 30 and 90 minutes every day be- fore the electronic system was introduced. • More than $10,000 in cheques issued to ibault and her husband while she was on maternity leave receiving employ- ment insurance benefi ts, which the clinic identifi ed as loans. ibault claimed these were for work done during her leave, but the dentist believed any hours she worked didn't earn the amount on the cheques. • Inaccurate conversion of time worked into decimals of hours (for example, calculat- ing 80.79 hours as 80 hours plus 79 min- utes, or 81.19 hours), resulting in her being overpaid by four hours. • ibault didn't "clock out" on two occa- sions while having dental work done in the offi ce for a total of 5 hours and 47 minutes. e clinic withheld ibault's last pay- cheque to make up for the overpayments she had made to herself and the failure to pay back the loans given to her and her husband during her maternity leave. ibault fi led a claim for her withheld wages. IF YOU SAID the dental clinic was entitled to withhold the worker's last paycheque to compensate for the overpayments, you're right. e Ontario Labour Relations Board determined that ibault was overpaid when she didn't report taking a break, gave herself unauthorized raises, calculated deci- mals incorrectly on her hours, and received pay while undergoing dental treatment. ese overpayments were all the direct re- sult of ibault's actions — whether inadver- tent or deliberate — of which the dentist was unaware until near the end of ibault's em- ployment. e clinic was entitled to recover the overpayments, said the board. However, the amount from the cheques issued to ibault during her maternity leave were not recoverable, as it was unclear whether the money was for hours worked or loans. If the former, ibault didn't declare the income and if the latter, a loan cannot be a reason to withhold wages, the board said. e overpayments for which ibault was responsible totalled almost $2,000, which was more than the amount of her last paycheque. As a result, the dental clinic was entitled to withhold ibault's last paycheque to recov- er some of the money she owed. See Halpin Dentistry Professional Corp. v. ibault, 2018 CarswellOnt 13453 (Ont. Lab. Rel. Bd.).

• Cover