Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2015 More Cases Employer can't deduct cost of detailing truck from smoking driver: Adjudicator A SASKATCHEWAN employer did not have the right to deduct the cost of detailing a truck damaged by the employee's smoking, despite the employee not initially disputing it, an adjudicator has ruled. Dennis D'Amour was hired has a truck driver in April 2009 by Moellenbuck Transport, a small trucking company in St. Gregor, Sask. When D'Amour was hired, the company notified him of its no-smok- ing policy for its trucks. e policy was in place because it had a negative effect on the value of its expensive trucks — two of which it owned and two that Moellenbuck leased — and trucks were considered pub- lic service vehicles because they delivered to public places and sometimes carried cus- tomers. Also, many truck drivers were non- smokers who didn't want to drive a truck that smelled of smoke, making it more dif- ficult to hire if smoking was allowed. D'Amour's supervisor discovered D'Amour had been smoking in one of the trucks he had been operating. He told D'Amour he would have to pay for detail- ing the inside of the truck and Moellenbuck would deduct the cost from D'Amour's pay. D'Amour didn't like it, but he remained si- lent and didn't object. e supervisor didn't seek a written authorization for the deduc- tion. e truck was taken for detailing and Moellenbuck was billed $529.19. Moel- lenbuck then deducted that amount from D'Amour's next pay. D'Amour resigned from his employment with Moellenbuck in June 2013 and in early 2014 he lodged a complaint with Human Resources and Development Canada, ac- cusing Moellenbuck of making an unau- thorized deduction from his pay, contrary to the Canada Labour Code. An investigator agreed that the deduc- tion Moellenbuck made was not authorized and not allowed under the code, issuing a payment order to the company. Moellen- buck appealed. e adjudicator referred to the Canada Labour Code, which stipulates "No em- ployer shall make deductions from wages or other amounts due to an employee, ex- cept as permitted by or under this section." e permitted deductions outlined are: federal and provincial statutory deduc- tions; deductions authorized by a court order or collective agreement; those autho- rized in writing by the employee; reclama- tion of overpayments by the employer; and any other regulatory deductions. e code also specifically prohibits deductions for damage to or loss of money or property, if anyone else other than the employee had access. e adjudicator found Moellenbuck's de- duction didn't fall under any of the catego- ries described in the code. ere was noth- ing in writing that stated D'Amour agreed to the deduction and as a result Moellen- buck could not "lawfully justify" it. e ap- peal was dismissed. "I conclude that Moellenbuck has not brought itself within any exception to the general rule that no employer will make de- ductions from wages due to an employee, as set out in the (code)," said the adjudica- tor. See Moellenbuck Transport Ltd. and D'Amour, Re, 2015 CarswellNat 1481 (Can. Lab. Code Adj.). owners gave her a letter advising that she was permanently laid off, effective immedi- ately. ey gave Webb one week's pay in lieu of notice. e next day, Webb filed a labour stan- dards complaint claiming outstanding holi- day pay, wages for unpaid hours of work and discriminatory dismissal — a reprisal for investigating her workplace rights with the Labour Standards Department. On June 11, 2014, the Nova Scotia Director of Labour Standards ordered the campground to pay Webb seven weeks of pay in lieu of notice as stipulated under the provincial Labour Standards Code, slightly less than $200 in vacation pay, and $64.37 in wages for unpaid hours of work. e total to which Webb was entitled was $2,431.49. e campground owners appealed the decision, though they acknowledged they owed Webb holiday pay. ey maintained Webb should have been able to complete her tasks during normal work hours, noting Webb's replacement was able to consistently leave the store within 10 minutes of closing. ey also claimed if they had known Webb was staying so late, they would have made adjustments to fix the situation or give Webb time off to make up for the extra time spent at work after closing. e owners also said they dismissed Webb due to poor work performance. ey claimed the decision had been made before they received Webb's email and were active- ly trying to find a replacement before firing her. e board noted that the code didn't allow contracting out of its minimum provisions, such as paying employees for the hours they work. It found there was evidence Webb was at the workplace after regular hours and she often did work-related tasks during that time. e store's cash register reports — the last task done before locking up — showed Webb worked between 15 and 30 minutes after closing 11 times and between 30 and 60 minutes twice. Since the owners had these reports, they should have known Webb was often working late, but there was no attempt to give her lieu time. As a result, the board found Webb was entitled to 7.5 hours' worth of unpaid wages, equal to $80.34 with four per cent vacation pay. e board also found there was some cre- dence to the owners' claim they were not happy with Webb's performance and were attempting to find a replacement worker. However, they continued to employ her while looking, and it was likely Webb would have continued to work for some time if she hadn't sent the email. By dismissing Webb the same day as they received her email dis- cussing her labour standards investigation, the two events were linked and "there was a direct and substantial connection" between Webb's dismissal and her raising of a pos- sible labour standards complaint, said the board. However, the board determined that Nova Scotia's code was narrower than some other jurisdictions when it came to reprisals, and only prohibited dismissal related to the employee filing a complaint. Since Webb hadn't filed a complaint and had only made inquiries, there was no contravention of the code. As a result, the one week's pay in lieu of notice was appropriate for an employee of less than two years, said the board. e board overturned the order to pay seven weeks' notice for discriminatory dis- missal and upheld the order to pay holiday pay and unpaid wages, reducing the total award to $171.39. See Webb and Osmond, Re, 2015 CarswellNS 432 (N.S. Lab. Bd.). Fired after demand for OT « from WORKER'S on page 1 The Canada Labour Code specifically prohibits deductions for damage to or loss of money or property.

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