At the risk of oversimplification, the Kitchen Table case involved complaints under the Employment Standards Act, 2000 by two former employees. One employee claimed termination pay and improper deductions from wages while the other claimed termination pay and overtime pay. Both employees quit their employment allegedly based on the "harassing" conduct of their supervisor. The employer argued that there was no harassment or improper conduct, but, rather, an attempt by the new supervisor to enforce policies and practices which had, it seems, been abused or ignored for some time.
The employer argued that the employees voluntarily resigned from their employment and, therefore, have no entitlement to termination pay under the Act. The employees, on the other hand, argued that they had been constructively dismissed and, therefore, had no choice but to resign.
With respect to overtime, the employer apparently had a policy of paying overtime where the employee worked more than 93 hours in a two week period (88 hours work plus 5 hours lunch).
For purposes of this post, I will not deal with the issue of ductions from wages (the Board sided with the employer on this issue).
The Board held that the employees had not been constructively dismissed, had quit and had no entitlement to termination pay. The new supervisors' initiatives "brought about an entirely different work environment and a sense of accountability and discipline which [the employee] could not cope." Furthermore, "what is clear is that policies, procedures and rules previously ignored were re-implemented, with vigour. The state of lawlessness at the store was replaced with strict adherence to business systems and directives."
With respect to the overtime claim by one employee, the Board held that the employer's policy of paying overtime after 93 hours in a two week period contravened the Act. Overtime under the Act is payable for hours worked over 44 in a week at a rate of time and one half the employees regular rate of pay. While it is possible for the employee and employee to agree to average hours for overtime purposes, there was no such agreement in the Kitchen Table case. Accordingly, the employee was owed the grandiose sum of $57.20 ($55 overtime pay plus $2.20).
The lessons from this case are many and I encourage you to read it. Here are some that I have taken from the case:
First, hire a lawyer who specializes in this area of the law (yes, I know what you're saying and no this is not a pitch for work. The Board commented at the outset of the case that:
None of the workplace parties was represented by legal counsel. To a large extent, each case at its core was about alleged harassment on the part of Mr. Powell. In Ms. Ayson's case, the alleged harassment was racial, whereas in Mr. Al-Mairy's application, the alleged harassment took the form of personal animosity. Harassment litigation is usually highly complex. The marshalling of the evidence in such matters typically requires considerable skill and care. Understandably, the applicants did not possess that level of skill and did not appreciate the importance of establishing in evidence the details of their contentions that they were victims of harassing behaviour. Their evidence in chief was sketchy, and their respective cross-examinations of Mr. Powell largely ineffective. As well, Mr. Al-Omairy failed in his examination in chief to go through the documents he prepared in this matter in support of his claim for overtime and unpaid wages. In short, the quality of the evidence was compromised by these circumstances. In making these comments, I do not mean to attribute fault. My purpose is to point out the difficulties in arriving at the key conclusions of fact in favour of the applicants.
Second, creating an environment that justifies an employee resigning his or her employment can amount to a constructive dismissal, but this is not an easy case for an employee. Management and "enforcing policies with vigour" is not necessarily the same thing as "harassment" (although it can be, in an appropriate case).
Third, how many employers have written averaging agreements for overtime purposes under the Act? Check out section 22 of the Employment Standards Act, 2000 for the "averaging" provisions.