Between:

Y.L.                                                     Employee/Appellant

v.

A.S.                                                     Employer/ Respondent

 

Adjudicator:

Richard Daitch

 

The matter before me is as a result of an appeal by Y.L. of a decision of the Employment Standards Officer (the “Officer”), in favour of Y.L. issued on June 9, 2022.  The decision of the Officer was that the Employer owed Y.L. vacation pay in the amount of $380.90.  While the Officer’s decision was in the Appellant’s favour, she has appealed because she believes that she is entitled to compensation regarding many other issues. 

Order Number:  2599

Before:  Richard Daitch, Adjudicator

Date Heard:  October 13, 2022

Date of Decision:  November 1, 2022

Authorities Considered:

Employment Standards Act, S.N.W.T. 2011, c.25, as amended

Employment Standards Regulations, R-051-2015

Section 52 Adherence

This decision is written in compliance with Section 52 of the Employment Services Act (“the Act”) which prohibits the disclosure of the Appellant and Respondents’ identities.

INTRODUCTION

This decision examines whether the Officer was correct, in accordance with the Act, in awarding Y.L., the Appellant, who worked for A.S., money for vacation pay, whether additional money was owed to the Appellant, or whether no money was owed to the Appellant as the Respondent claims.  

 

Section 75(5) of the Act allows an adjudicator to conduct an appeal without an oral hearing (Appendix, IX).  The Registrar of Appeals (the “Registrar”) gave both parties sufficient opportunities to submit written arguments. As neither party requested an oral hearing, I have found that the process has met the demands of procedural fairness without the necessity of an oral hearing; therefore, I will be rendering a decision based on the written submissions of the parties without requiring oral representations.

 

The Registrar sent the file to the contact address given by the Respondent to Employment Standards by registered mail, and the package was returned by Canada Post.  At my request, an Employment Standards Inspector spoke to the leasing manager of the premise that the Respondent had claimed was its place of business.  That individual had never heard of the business.  I am satisfied that the Registrar has made every reasonable effort to provide the Respondent an opportunity to respond to the claims of the Appellant.    

 

 

POSITIONS OF THE PARTIES

Y.L. worked for the Employer as a marketing manager from November 28, 2018 to March 11, 2019 at a rate of $1,800.00 per month and claims that she did not receive all the wages owed to her.  The Employee claims that the Employer terminated her employment without notice and she is owed termination pay.  Y.L. also has many other claims for compensation, which will be covered in detail in this decision.

 

THE COMPLAINT

The Employee stated that she had been the Marketing Manager for A.S. from November 28, 2018 until March 11, 2019.  On March 2, 2020, she filed a complaint with Employment Standards stating that the Employer initially paid her $1,800.00 per month, plus an “unknown” bonus, and $800.00 was deducted for accommodations in a dormitory. She stated that after this deduction, she made $1,000.00 per month before taxes.  She further stated that after the Employer terminated her employment, she negotiated with the company and received “some make up (“$2629 + $1343.50”).  She claimed A.S. offered her no termination pay and did not provide her with a notice of termination in advance.  She claimed that she did not receive the Northwest Territories minimum wage.  The Employee claimed that she worked eight hours a day, six days a week for a total of 48 hours per week.  Her claim included regular pay, overtime statutory holiday pay, termination pay, and unlawful deductions.  The Employee submitted a seven-page document explaining her treatment by the Employer.  The following is a summary of the issues she raised in her complaint: 

 

ISSUES AND CONCERNS OF THE EMPLOYEE

The Appellant claimed that she:

•  Was responsible for implementing the company’s Customer Relation Management (“CRM”) system, establishing the company’s tourism product system and uploading the product description on multiple platforms;

•  Drafted management policies;

•  Was concerned that the company was producing “false propaganda”;

•  Believed that the company barely had rules and regulations and the employment situation was “chaotic”;

•  Was asked to be a tour guide and driver of guests, even though she did not have a Class-4 driver’s license was not “suitable” for this work;

•  Was told by her supervisor that the company would terminate her contract because she would not accept work as a tour guide;

•  Did not receive the salary that she had been promised;

•  Was not able to receive a clarification of her salary “which was far below their original offer and even below the Northwest Territories minimum wage”;

•  Found that eight days compensation was due to her;

•  Did not receive the last part of her wages for March of 2019;

•  Was paid $9,512.50, which was far less than the wages she had been promised;

•  Was of the opinion that the Employer should “make up” her salary to $6,000.00 per month;

•  Was of the view that A.S. should be required to reimburse her $12,000.00 for the vehicle that she purchased to drive to work;

•  Was not given notice of termination in advance;

•  Was given accommodations in “very poor condition” and she felt she had to move to better accommodations.  She paid $1,425.00 for rent and a deposit.  Because of her unexpected termination, she requests that the Employer reimburse her that amount;

•  Feels that the Employee should reimburse her $900.00 to recover payment for a daycare deposit she had made for her child;

•  Believes that the Employer should pay her $500.00 for items she purchased and had to throw away due to her sudden termination;

•  Is of the opinion that the Employer should compensate her the amount of $1,601.20 for a round trip airplane ticket to China;

•  Is requesting $100,000.00 for “great physical and mental damage” she had suffered;

•  Believes that the Employer should pay her a total of $132,764.35;

•  Wants the Canadian Revenue Agency to investigate whether A.S. is paying the required amount of taxes on its revenue;

•  Believes that the Employer had posted “fake” online information in order to increase business;

•  Was concerned that the Employee had used “inadequate vehicles” putting their clients at risk, and

•  Claimed that the Employer hired individuals with inadequate tour guiding and photography experience.

 

INVESTIGATION BY EMPLOYMENT STANDARDS

Following the Appellant’s March 2, 2020 Complaint, Employment Standards Inspectors communicated with both parties to the dispute.  In this section of the decision, I will highlight some of the key issues examined by these Inspectors.  On March 6, 2020, an Inspector telephoned the Appellant and explained aspects of the Act and its regulations, and stated that Employment Standards could only examine payroll records going back one year from the date an employee files a complaint.  According to the Inspector, as Y.L.’s last day of employment was March 11, 2019, and she filed her complaint on March 2, 2020, Employment Standards could only look at nine days’ wages.  Y.L. responded saying that she had consulted “a couple of lawyers” and they had told her that she had two years to file a complaint.  The Inspector referred the Appellant to Section 61(2) of the Act (Appendix VII).  Y.L. asked if she could apply for an exception, and the Inspector explained that the timeframes were very clear.  The Inspector also explained what matters were within the domain of the Employment Standard legislation, and what matters were not.  The Inspector assured the Appellant that her office would investigate all areas of her complaint that fell within Employment Standards’ jurisdiction.

 

On March 9, 2020, an Inspector wrote to the Respondent, explaining that Y.L. was requesting that the Employer pay her the difference between what she was paid and $6,000.00 dollars a month, to compensate her for the salary she was promised and the lesser amount that the Employer actually paid to her.  The Inspector also informed the Respondent that the Appellant also claimed that unauthorized deductions were taken from her salary, and that she was terminated without notice on March 11, 2019. 

 

On the same day, the Respondent sent an email to the Inspector.  In this email, the Respondent claimed that due to the Appellant’s skill deficiencies, the Employer changed the Appellant’s job title, salary and that the Employee signed a second contract as an “assistant”.  She claimed that the Employee had “quit the job”.  The Respondent explained details regarding the Appellant’s application for Employment Insurance, and claimed the Employer had provided the Employee with “more than two-weeks for her and flight ticket as an allowance”.  In this correspondence, the Respondent provided an agreement signed by the Appellant and dated March 11, 2019.  While the agreement was written in Chinese, a translation was subsequently provided by Employment Standards.  

 

On March 18, 2020, the Appellant submitted detailed financial information, her employee contract, a copy of her Canada Revenue Agency T4 slip for the year 2018, and other financial data.

 

On October 20, 2020, Y.L. called an Inspector, who informed her that Employment Standards had reviewed a document which indicated that she was paid $2,648.00 for “transitional expense” and after she had left the company.  Y.L. claimed that she had been “forced to sign/blackmailed” by the Employer.  The Inspector advised Y.L. that her office could only review information from one year from the date that her complaint was received.

 

On June 16, 2021, the Inspector received an email from Q.S. representing the Employer.  In this correspondence, Q.S. claimed that the Employer had not only been paid the Employee all the money due to her, but that she owed the Employer $2,267.50.  Q.S. stated that the Employee had told her on March 9, 2019, “I am going to quit the job right now!  I will not work for you from now on.”  In her email, Q.S. questioned the academic qualifications of the Employee.  Q.S. enclosed a Chinese version of an agreement between the Employee and Employer, signed by E.J. on behalf of the company and the Employee on March 11, 2019.  The agreement stated, in part, the Employee “shall not. out of any reason, demand any further compensation from the Company…”

FINDINGS OF THE OFFICER

In the view of the Employment Standards Officer, there were four issues to be determined.  They were:

 

            termination pay?

 

The Officer determined that Y.L was entitled to termination pay and vacation pay in the amount of $1,455.83.  She found that A.S. had a legal obligation to provide Y.L. two weeks’ notice of termination.  The Officer concluded that Y.L. did not clearly and unequivocally resign from her position at A.S., and that the Employer did not provide the Employee with the required notice of termination.  While Employer claimed that Y.L. had resigned voluntarily, neither party provided Employment Standards with evidence, such as a letter of resignation, to support the Employer’s claim that Y.L. resigned her position.  The Officer cited the decision in Burnaby Select Taxi (BC EST # DO91/96), as an accepted legal test determining whether an individual has quit his or her position.  This decision states, in part, “the right to quit is personal to the employee and there must be clear and unequivocal facts to support a conclusion that this right has been voluntarily exercised by the employee involved”.  The Officer noted that the written agreement between the Employer and Employee stated that the parties reached an agreement regarding the termination of the job contract.  The agreement set out an amount payable by A.S. to the Employee.  The Officer stated that if Y.L. had resigned her position, “there would have been no obligation on the employer to pay her termination pay or other transitional expenses.”  As A.S. did not present clear and unequivocal evidence that a resignation had occurred, the Officer sided with Y.L. on the matter of whether Y.L. was entitled to termination pay. 

 

Nevertheless, the Officer concluded that no money was owed to the Employee for termination pay.  The Officer found that, based on Y. L’s earnings during her time of employment with A.S., she was entitled to termination pay of $1,455.83.  However, the parties had reached agreement that the Employer would pay the Employee $2,648.00 for “transitional expenses” upon termination of her employment.  As that amount exceeded the $1,455.83 due to Y.L., the Officer determined that the Employer had fulfilled its financial obligation to the Employee for termination pay. 

 

The Officer cited Section 61(2) of the Act (Appendix VII) in the decision.  This section explains the limitation period for filing an appeal.  It states: “A complaint may be made any time within 12 months after the date on which the subject matter of the complaint occurred.”  Y.L. filed the complaint on March 2, 2020.  Her last day of employment was March 11, 2019.  Therefore, the Officer concluded that Employment Standards was permitted by legislation to consider Y.L.’s claims of wages owed to her for only the final nine days of her employment.

 

The Officer cited Section 50 of the Act.  This section addresses recordkeeping, and states that an employer must maintain and make available for inspection to the Employment Standards Officer an accurate record.  Section 50 goes on to specify the details that an employer is required to do (Appendix VI).  The Officer stated that A.S. had not provided any payroll records to Employment Standards and, therefore, was not in compliance with this section of the Act which requires an employer to maintain a daily record of the employee’s hours of work, and provide those records to Employment Standards upon request.

 

While Y.L. provided Employment Standards with copies of her pay statements, the Officer concluded that there was insufficient evidence to make a finding on whether Y.L. was owed wages for work she performed from March 2, 2019 until March 11, 2019.  

 

The Officer cited Section 25(1) of the Act in the decision.  This section refers to vacation pay (Appendix I), and explains that an employee who has worked for an employer for less than a year is entitled to 4% vacation pay.  The Officer found that the Appellant had not received vacation pay, and the Y.L.’s claim for vacation pay fell within the limitation period of the complaint.  

 

The Officer issued a decision on June 9, 2022, in which she decided that as the Appellant had received a greater amount of payment for “transitional expenses” than the amount of termination pay and vacation pay to which she was entitled, that Y.L. was not owed additional wages.  Finally, the Officer found that because A.S. had not provided vacation pay to the Employee, she was owed $380.50 for vacation pay.

THE APPEAL

On June 30, 2022, Y.L. appealed the decision of the Officer.  Y.L. stated that the Employer had committed “a fraud” with regard to her salary, and claimed that her salary should have been considered $6,000.00 per month.  The Employee requested that the “termination fee”, vacation pay and “salary gap” should be re-calculated.  The Appellant claimed that she was terminated without acceptable reasons and notice, which caused financial losses.  Y.L. claimed that the Employer should be responsible for compensation for items one to ten, explained on pages five and six of the seven-page document that was included in her appeal.  This submission was largely a reiteration of the concerns raised in the “Issues and Concerns of the Employee” sections of her March 2, 2020 Complaint to Employment Standards (“the Complaint”).

 

As mentioned above, in the Appellant’s appeal submission, she re-stated or emphasized a number of issues raised in complaint.  Y.L. repeated her claim that she was owed over $132,000 by the Respondent.  The Appellant noted that she had worked remotely from China dealing with CRM prior to arriving in Yellowknife on December 12, 2018.  In addition to her CRM work, her responsibilities included processing original trade data, training employees, establishing the Employer’s tourism product system, producing product description content, uploading product descriptions on multiple platforms and communicating with contacts of each platform, drafting policies and various marketing assignments. 

 

The Appellant expressed concern about the quality of her housing arrangements.  Additionally, she was concerned about being asked to conduct tours for tourists, being assigned to be a driver transporting tourists and taking on the duties of a photographer, which were areas in which she had no training or experience.  Y.L. claimed that the Employer had asked her to work nights as a tour guide, which she could not do because she had would have to care for her four-year-old daughter, after the child arrived in Yellowknife.  She noted that leaving her child alone would have been both “unsafe and illegal”.  Y.L. also noted that the Employer did not pay her either the salary or dividends she had been promised.  When she tried to obtain clarification about her salary, Y.L. claims that her supervisor told her, “Other employees are busy earning money for the company, while you have been discussing with me for a salary raise.” 

 

The Appellant also claims that a major shareholder of the company said to her that if she continued to raise financial concerns, she would give “no peace” to her or her daughter.  The Appellant further claims that Q.S., a representative of the Employer, refused to talk to her when, on several occasions, she tried to discuss her termination. 

 

 

 

FINDINGS OF THE ADJUDICATOR

This decision examines whether the Officer was correct, in accordance to the Act, in awarding Y.L., who worked for A.S., money for vacation pay, whether additional money was owed to the Appellant, or whether no money was owed to the Appellant as the Employer claims.    

 

The matters before me are:

            1. Does the Act require the Employer to maintain accurate records, and did the

           Employer fulfill its legal obligations?

            2.  Was the Employee paid the salary which was due to her?

3.  Was the contract that the Employee signed with the Employer on March 11, 2019 valid?

            4.  Was the Employee owed regular wages?

            termination pay and how much is she owed?

purchase of an automobile?

food?

11. Was the Employer responsible for compensation to the Employee for an airline ticket purchased?

12. Was the Employer responsible for the Employer’s damage to her physical and

mental health?

Recordkeeping

The Officer raised the issue of recordkeeping in her decision. As she noted in her decision, “The employer did not provide any payroll records to our office.”  Section 50(01) of the Act (Appendix VI) requires an employer to maintain and make available for inspection by the Officer an accurate record of specific information for each of its employees.  Subsection 5 states, “The hours referred to in paragraph (1) (a) be recorded daily.”  This means that the Employer should have been keeping accurate timesheets for the Employee and made them available to the Officer.  I agree with the Officer’s conclusion that the Employer was not in compliance with maintaining a daily record of the Employee’s hours of work, and did not provide those records to Employment Standards when they were requested.  Keeping such records and producing them to the Officer was not an option for the Employer, but a legal obligation.  I strongly advise A.S. to adhere to the requirements of Section 50 of the Act in the future.  Failure to do so could leave it to the Officer, and subsequently to an adjudicator, based on the evidence submitted, to determine how much financial compensation is owed an employee.  Section 65(2) (Appendix VIII) of the Act states that employers who have failed to make available its records, the Officer “may determine the amount owed in any reasonable manner” that the Officer considers appropriate.  Section 79(1b) (Appendix X) allows an adjudicator to make an award that does anything that an inspector or officer may do under Act.  This could mean that an employer, who ignores the legal recordkeeping requirements of the Act, could be placed in a problematic position in future disputes.

Matters Not Covered by the Act

Y.L. has requested financial compensation for a number of issues.  These include the purchase of an automobile, daycare expenses, losses of personal items, losses of money spent to rent an accommodation and compensation for mental and physical health issues caused by her experience working for the Employer.  These are matters not directly covered by the Act, and, therefore, an adjudicator cannot consider these issues.  Consequently, the matters not covered by the Act that total $115,962.20 of the Appellant’s overall claim, and have not been considered in this decision. 

Section 61 of the Act

The Officer cited in her decision, Section 61(2) of the Act (Appendix, VII) which states:

       

61(2) A complaint may be made at any time within 12 months after the date

           on which the subject of the complaint occurred.

 

As Y.L. filed a complaint on March 2, 2020, when her last day of work was March 11, 2019.  As a consequence of this delayed complaint, the Officer considered that she was only able to consider the Appellant’s claim that she was owed wages by the Employer from the period of March 2, 2019 to March 11, 2019, or nine days.  I disagree with this conclusion.  Section 61(2) states that the complaint may be made “at any time” within 12 months after the subject of the complaint occurred.  The Appellant’s complaint was made within the required timeframe.   

Was the Employee Paid the Wages to which She Was Entitled?

The Employee worked as a Marketing Manager for the Employer. She claims that her salary should have been $6,000.00 per month.  Section 9 of her Employment Contract, signed December 13, 2018, stated that she had a base salary of $1,800.00 per month plus dividend rights.  The Section 9 of the contract specifies that: “The employer will grant 550,000 Dividends Rights to the employee.”  While Section 45 of the contract gives a number of definitions, it does not define what a dividend right is.  It is unclear whether the Employer paid a dividend to any of its workers during the time period that the Appellant worked.  It is also unclear what “dividends rights” means, as the term is not defined in the contract.  The Officer did not address this issue in her decision, and the Act does not define a dividend right.  Because of the lack of specific information in the employee’s contract about how and when dividends would be paid to the Appellant, it is not a matter that can be addressed in this decision.  The Employee contends that she sought clarification about this benefit stating, “I never had a clarity from the company about how much I would be paid or when I would get my bonus.”  As the Respondent has not denied this claim, I find that the Appellant’s statement, regarding the Employer not clarifying the possibility of her receiving dividends was credible.

 

What is clear is that the Appellant agreed to work for a base salary of $1,800.00.  That amount of salary would have equaled $21,600.00 for a full year’s work.  Yellowknife is a very expensive place in which to live.  On the balance of probabilities, it seems unlikely that the Appellant, who is well educated with 15 years of experienced in her field, would have left her native land and worked for the monthly salary stipulated in the employment contract, without expecting dividends to top up her annual salary. 

 

According to her claim in her appeal, Y.L. expected a salary of $6,000.00 per month, which would have equaled $72,000.00 per year.  It seems probable that the Appellant thought that the prospect of receiving dividends would increase her wages considerably.  Y.L. had a number of discussions with her supervisor, but was never able to obtain a clear answer with regard to her entitlement to a dividend.  I find that Y. L’s statement about her expectation that she would be paid considerably more than $1,800.00 a month is credible. 

 

However, there is no indication in the documentation, which the Appellant has submitted, that spells out the details of how and when that benefit would be paid.  The employment contract lacks specificity with regard to Y. L’s potential dividend benefit.  I have been provided with no evidence that Employee was entitled to dividends during the specific time of her employment with the Employer.  Therefore, I have concluded that the Employee has been paid the wages to which her contract clearly entitles her. 

 

It is probable that the Employer used the prospect of paying Y.L. dividends from the company’s profits as an inducement for her to accept the position.  I find the Employee’s description of the Employer’s evasiveness when she wished to discuss her entitlement to dividends credible, particularly as the Respondent did not deny this claim. 

While it does not affect the amount of wages the Respondent owes to the Appellant, I wish to touch upon the manner in which the Appellant was treated.  The Employer did not deny the Employee’s claim of providing overcrowded and inadequate housing for the Employee.  It did not deny that it offered her the possibility of receiving dividends. 

 

Additionally, the Respondent has affirmed that it wanted the Appellant to work as tour guide.  Section 5 of the Appellant’s contract with the Respondent stated: “The Employee will perform any and all duties that are reasonable and that are customarily performed by a person holding a similar positon in the industry or business of the Employer.”  That begs the question of whether it was “reasonable” to require a marketing manager to perform the duties of a tour guide.  In my view, the duties of a tour guide are not “customarily” performed by a market manager, who does not have training in that field.  Further, it was not reasonable for the Employer to ask the Employee to transport customers, when she did not have the appropriate driver’s license.  It was also not reasonable to have asked the Appellant to perform the duties of a photographer, when she has had no training in that field.  The Respondent attempted to substantially alter a condition of the Employee’s employment, which is prohibited by Section 40(a) of the Act  (Appendix V).  

 

In her email of June 16, 2021 to the Inspector, Q.S. representing the Employer, stated that she had questioned Y.L.’s professional ability in area of writing programing code.  Yet, the Employer has provided no information indicating that the Employee did not pass her probation period.  As she worked for more than 60 days, it is reasonable to conclude that Y.L. did successfully complete her 60-day probation period as outlined in Section 2 of her employment contract.  If the writing of programming code was an essential part of her duties, it is unlikely that she would have successfully completed her probation period.  Section 6 of her contract references “the successful improvement of the employee”.  Q.S. notes in this email that she, herself, has the skills to program the “simple task” that she expected Y.L. to be able to do.  If programming skills were an essential expectation of the position and Q.S. had those skills, why didn’t Q.S., who majored in “Message Information System” at university, provide in-service to the Employee enabling her to have “successful improvement”?  Additionally, Section I of the contract between the parties to the dispute obliges the Employer to provide training to employees to ensure that they “achieve the working requirements”, and that Section states that any cost directly related to the training will be borne by the Employer, with the exception of personal expenses.  Rather than give Y.L. the opportunity for further training, Q.S. admitted, in her June 16, 2021 correspondence with the Inspector, that she questioned the Appellant’s “professional ability in the presence of somebody else”.

 

In view of the above, while many aspects of the Appellant’s complaint and appeal have no remedy under the Act, I have concluded that the Respondent has treated the Appellant very unfairly. 

Was the March 11, 2019 Contract Signed by the Parties Valid?

The situation in which the March 11, 2019 contract was signed was problematic.  The Appellant claimed that she had never offered to quit, but only refused to accept the assignment as a tour guide.  Because of this refusal, a supervisor, Q.S., told the Appellant that the A.S. would be terminating her contract.  Y.L. had planned to fly out of Yellowknife on the following day, to pick up her daughter in China and return to work for the Employer. 

 

In her letter of appeal, Y.L. stated that Q.S. refused to speak to her about the matter of the termination.  The termination was not anticipated and the Employee had recently bought a vehicle for daily transportation to work, rented a dwelling and made a deposit for daycare for her daughter.  It is clear that she had not quit her job and had been planning on returning to work.  Given these recent expenses, Y.L. was short of money and the Employer was aware of this.  In her email of June 16, 2021 to the Inspector, Q.S. stated that Y.L. told her on March 11, 2019 that she “had no money to buy food” and would “starve to death” and she had begged the Employer “to give her money”.  Given her economic situation, the Appellant signed a contract agreeing to accept $2,648.00 and agreed to not ask the company for future compensation. The Employer agreed to give the Employee a positive reference.

 

The circumstance in which this agreement was signed begs the question of whether the Appellant was under economic duress and undo oppressive pressure when she signed the on March 11, 2019 contract with the Employer. 

 

I have examined a great deal of case law on the subject of contracts signed under economic duress.  A good example is the case of Van Kruistrum v. Dool et al 1997 CanLII 12284 (ON SC).  In this dispute, Ken Dool, a tenant farmer in Ontario, leased 180 acres of land from Peter Van Kruistrum, a landowner (the “Landowner”).  Subsequently and with the knowledge of the landowner, Mr. Dool leased 21 acres of this land to Mr. Vanderstelt, a (Subtenant”).  The Landowner did not object to Mr. Vanderstelt’s plan to grow horseradish on the land.  Mr. Van Kruistrum planned eventually to sell the topsoil of the leased land. Subsequently, the Landowner became concerned that the horseradish crop might damage the topsoil.  The reason for this concern was that the Landowner became aware that after a crop of horseradish is harvested “volunteer” horseradish, which is a subsequent natural growth without seeding, occurs.  The volunteer horseradish would have greatly reduced the value of the topsoil. 

 

When the Subtenant was about to harvest his crop in the spring of 1990, Mr. Van Kruistrum ordered the Subtenant’s crew off the property, and stated that there would be no harvest until there was an agreement that Mr. Vanderstelt would “clean” the topsoil after the harvest. The Landowner and the Subtenant signed a contract on June 8, 1990, in which Mr. Vanderstelt agreed to clean the topsoil and not grow horseradish on the land in the future. 

 

Mr. Vanderstelt later testified in court that he had signed the agreement because he had needed to satisfy his commercial contacts and that his crop would deteriorate in quality if the harvest was delayed.  The Subtenant did not want wish to enter into the agreement, but felt he had no viable or realistic alternative.  The Court considered whether the parties had negotiated on “an even playing field”, or if one party was subjected to coercion due to economic duress during the negotiation.  The Court looked at four factors:  1) Did the party protest at the time the contract was signed?  2) Was there an alternative course of action available to the party?  3) Did the party receive independent legal advice?  4) After entering into the contract, did the party take steps to avoid it? 

 

After reviewing the answers to these questions, the Court found that the Subtenant, who signed the agreement despite not wanting to enter into it, had been “coerced to enter this agreement” and had “no viable alternative” than to sign it.  The Court considered whether one party had an “undue advantage” because the other party was under “economic distress” because he would have lost his entire crop if he had not signed the agreement.  The Court found that given the circumstances, the contract was not enforceable and voided it.  

 

In my view, the agreement signed by the Appellant is invalid because, similar to the situation of the Subtenant, it was signed under economic duress.  There was an inequality of bargaining powers between the parties.  Y.L. had had no expectation that she was to be terminated, and no time to find alternative work.  The Employer had given her no oral or written prior notification that it was considering terminating her.  The Appellant had spent all of financial resources in expectation of continuing her employment with the Respondent.  In her October 20, 2020 conversation with the Inspector, Y.L. stated that she “was forced to sign/blackmailed”, as she was leaving on a flight out of Yellowknife the following day, and would not have received “any money” if she had refused to sign.  Given the circumstances, I have found that the Appellant was coerced to enter the agreement, and signed it under economic duress. 

 

In her June 16, 2021 email to the Inspector, the Respondent acknowledge that she was aware that Y.L. had no money to buy food. The Appellant was of the view that the Respondent owed her a great deal more money than the $2,648.00 she was offered.  While a number of her claims are not covered by the Act, some of them are.  In her appeal Y.L., has identified such issues as the amount of salary she claims she was promised, overtime pay, vacation pay and termination pay.  She believed that there was a “salary gap” of $14,035.58, that $835.45 of overtime pay was due to her and that she was entitled to $1,380.82 in termination pay.  She entered the March 11, 2019 negotiation with her Employer believing that it owed her a total of $16,251.85 in matters covered by the Act.  However, she agreed to a contract which provided her only $2,648.00 or just over 16% of what she believed she was owed in these three categories. 

 

Therefore, either Y.L. was a very poor negotiator or because of her dire financial strait, which the Employer by its own admission was fully aware, Y.L. felt that she had no reasonable alternative but to sign the agreement.  She did not have an opportunity to get independent legal advice and, subsequently, she did take steps to avoid the contract by filing a complaint with Employment Standards.  Given the circumstances of the negotiation between the parties, Y.L. had no viable alternative to signing the contract.  I find that the March 11, 2019 agreement between the parties was signed when the Y.L. was under economic duress.  Therefore, this contract is not valid.

Even if the contract had been valid, the Respondent would have been required to provide termination pay to Y.L.  The March 11, 2019 contract did not stipulate that any part of the payment to the Appellant was for termination pay.  On the contrary, it stated that the money paid was for “transitional expense”.  The language in contracts must be precise as to their intent.  Even punctuation matters.  For example, in a 2017 case in the U.S. Court of Appeals, involving the Oakhurst Dairy of Portland, Maine and its truck drivers, the dairy had to pay its employees $5,000,000 because of a misplaced comma in their agreement.  If the Respondent intended payment to Y.L., in whole or in part to be for termination pay, the language of the agreement would have had to make this clear.  

 

Another factor affecting the validity of the contract is whether the Respondent considered the final payment to the Appellant a settlement or a loan. In her June 16, 2021 email to Inspector, Q.S. stated that Y.L. “still own (sic) our company $2,267.50”.  Q.S. came up with figure by subtracting $380.50, which the Officer had determined the Respondent owed Y.L. in vacation pay, from the $2,648.00, the amount designated in the final agreement between the parties.  This may indicate that the Employer considered the payment for transitional expense to be a loan to the Appellant.   

 

Termination Pay

Section 37, 38 and 39 of the Act deal with the issue of termination pay (Appendix II, III, IV).  There is a difference of opinion about whether the Appellant quit her job, as the Respondent contends, or was terminated by the Employer without notice, as the Employee claims. 

Q. S’s email of June 16, 2021 to the Inspector does not clarify the matter and appears to be contradictory.  In this communication, Q.S. states, “I also need to let you know more details about how we terminated the employment.”  However, later in this email she claims that the Appellant said, “I am going to quit the job right now!”

 

The Officer concluded that Y.L. was terminated.  As previously mentioned, she cited the case of Burnaby Select Taxi, which stated, in part:

           

“The right to quit is personal to employee and there must be clear and  

unequivocal facts to support a conclusion that this right has been voluntarily exercised by the employee involved.  There must be both a subjective and an objective element to the quit: subjectively, the employee must form an intent to quit employment; objectively, the employee must carry out an act inconsistent with his or her further employment.’

 

The Officer also cited Evans v. Avalon Ford (“Avalon”) which states that it is reasonable for an employer to allow some time for the parties to cool off.  The Respondent did not allow for this to occur.  On the contrary, on March 11, 2019, two days after the disagreement between the parties, E.J., representing the company, went to the dormitory room where Y.L. lived and negotiated an agreement with the Appellant.  There was not an attempt for a cooling off period after a confrontation in “an emotionally charged circumstance” as Avalon suggests, and which may have enabled the parties to resolve the dispute and allowed the Appellant to return to work. 

 

Therefore, I agree with the Officer’s conclusion that Y.L., who objected to being asked to do work that was not in her job description and for which she was not qualified, had formed a clear intent to quit her job.  The Officer found that the Appellant was entitled to $1,455.83 in termination pay, as she was not given reasonable notice of termination.  Additionally, I note that Y.L. did not decline to do “reasonable alternative work” (Appendix II), as previously discussed in this decision.  The alternative work was in an area in which the Appellant had to training or expertise.    

 

The Act does not specifically define a transitional payment.  The Officer concluded that the Employer’s payment for transitional expenses exceeded the termination pay to which she was entitled. 

 

I disagree with the Officer’s decision that the Appellant was entitled to no award for termination payment, because the amount was exceeded by the benefit in the agreement signed by the parties.  As I previously stated, the agreement has no validity. Additionally, an agreement to pay “transitional expenses” does not equate to a termination payment.  The word transition is a general term meaning the act of passing from one state, action or condition to another, while the word “termination” is a specific term meaning the act of ending or concluding.  The meaning of “termination pay” is clearly specified in Section 39 of the Act (Appendix IV).  The words “termination pay” are not mentioned in the March 11, 2019 agreement. 

 

I also disagree with the Officer’s finding that Y.L. is only entitled to nine day’s consideration for an award, because of the date of the complaint.  The Appellant did make the complaint within 12 months after the subject matter of the complaint.  Section 61(2) of the Act, states that a complaint can be made at any time within that 12-month limitation period.  The Appellant’s complaint falls within the limitation period of the Act. I have also noted that the Officer made her calculation about vacation pay, based on the entire period in which Y.L. worked for the Respondent.  Likewise, I have used her entire period of employment as the basis of examining the issue of termination pay.   

 

Y. L. is owed termination pay.  I have based the amount owed upon the approximately 90 days Y.L. worked for A.S. and have included overtime pay, statutory holiday pay and regular wages in my calculation.  The amount of termination pay owed to Y.L. is $1,421.68.  The Officer found that Y.L. began work on November 28, 2018.  The employment contract between the parties was signed by them on December 13, 2018.  As the Employer did not produce the records it was required to keep under Section 50 of the Act, there exists no definitive record of the specific days and hours that Y.L. worked.  I have based my calculations regarding money owed to the Employee on the start date that the Officer cited in her decision, and in accordance with the Act.

 

I agree with the Officer’s view that Y. L’s is entitled to vacation pay (Appendix I).  However, for reasons stated in this decision, I also find that the Appellant is entitled to an award for termination pay.  The calculation of the Appellant’s entitlement in this regard is explained below.

CALCULATIONS FOR VACATION PAY

            Cheque Dated 12/28/2018                  $1,005.00

            Cheque Dated 01/28/2019                  $1,000.00

            Cheque Dated 02/01/2019                  $1,316.00

            Cheque Dated 02/28/2019                  $2,200.00

            Cheque Dated 03/28/2019                  $3,991.50

                                           Total                    $9,512.50

            $9,512.50   x   4% Vacation Pay   =    $380.50

TERMINATION PAY

            Owed to the Employee                   = $1,421.68

 

TOTAL OWED TO THE EMPLOYEE = $1,802.18

 

It is worth noting that due to the fact that proper recordkeeping was not done by A.S., determining the amount of termination pay owed to Y.L. was challenging.  The Employer paid Y.L. in excess of the $1,800 monthly that the employment contract required.  There is a lack of clarity in the contract about the Appellant’s dividend rights. There is no indication in the contract about when this payment would be made.  Because of the lack of specificity about the dividend rights of the Employee, it appears the she made a bad bargain in agreeing to the contract.  While the Appellant is under the impression that she should been paid $6,000.00 per month, the contract does not stipulate this.  Nevertheless, the $9,512.50 paid to A.Y. appears to have covered her salary, overtime pay and statutory holiday pay. 

 

Because the Respondent did not submit to the Officer for inspection accurate records of specific information the Act required it to have, under the authority of sections 65(2) and 79(1b) of the Act, I have made my determinations with regard to the amount of the award due to the Appellant.  I have done this in a reasonable manner, based on the information provided by the parties to this dispute.

 

DECISION OF THE ADJUDICATOR

Section 79(1a) of the Act, allows an Adjudicator to make an award that “confirms, revokes, amends or substitutes anything that is subject to an appeal”.  While I confirm the Officer’s decision that Y.L. was owed wages for vacation pay, for reasons stated above, I find that she was also owed wages for termination pay.  Therefore, I disagree with the Officer’s findings with regard to the total amount of wages she is owed.  Consequently, in accordance with the calculation noted in the previous section of this decision and pursuant to Section 79 of the Employment Standards Act of the Northwest Territories, I amend the June 9, 2022 decision the Officer with regard to the amount of wages owed to the Appellant.  I confirm the decision of the Officer that wages are owed to the Appellant, in the amended amount of $1,802.18.

 

Dated at the Town of Fort Smith, N.T. on the 01 day of November, 2022.

            Richard W. Daitch, Adjudicator

 

 

 

 

Sections of the Northwest Territories Employment Standards Act

Cited in the Decision

I:  Section 25 of the Act:  Vacation Pay:

Section 25(1) of the Act addresses vacation pay.  This section states: 

Vacation pay must be equal to at least

(a) 4% of the annual wages of the employee for each of the first five years

of employment with the employer; and

(b) 6% of the annual wages of the employee for each of the sixth and subsequent years of employment with the employer.

II:  Section 37 of the Act:  Termination of Employment:

(1) Section 37(1) of the Act states:

No employer shall terminate the employment of an employee who has been 

employed by that employer for a period of 90 days or more, unless the employer

(a) gives the employee a written notice of termination indicating the date the notice is given and the date on which the employment is terminated; or

(b) pays the employee termination pay. 

 (2) Subsection (1) does not apply to an employee

(a) who is temporarily laid off;

(b) who is employed in an activity, business, work, trade, occupation or profession that is exempted by regulation;

           (c) whose employment is terminated by just cause;

           (d) whose employment is terminated because the employee has refused an offer;  

           by the employer of reasonable alternative work with the employer; or

           (e) who is on temporary layoff and does not return to work within seven days 

               after being requested to do so in writing by the employer.

III:   Section 38 (1) of the Act: Application to notice of termination states:

This section applies when a notice of termination is given to one employee or a group of employees.

IV:  Section 39 of the Act:  Termination Pay:

Section 39 of the Act entitles employees to termination pay.  It states:

If termination pay is given to an employee, the amount of the termination pay must be equal to the wages and benefits to which the employee would have been entitled, if the employee had worked his or her usual hours of work for each week of the period for which notice would otherwise be required by subsection 38(c).

V:  Section 40:  Constructive Termination:

Section 40 of the Act deals with the issue of constructive termination.  It states:  

The Employment Standards Officer may declare that an employer has terminated the employment of an employee, if the Employment Standards Officer is satisfied that

(a) the employer has substantially altered a condition of the employee’s

Employment; and

(b) the purpose of the alteration is to discourage the employee from continuing in the employment of the employer.

 VI:  Section 50(1) of the Act:  Recordkeeping:

Section 50(1) of the Act requires an employer to maintain and make available for inspection by the Officer an accurate record of specific information for each of its employees.  This information includes but is not limited to:

     (a)   The hours worked on duty each day;

     (b)   The gross wages and wage payments made;

     (c)  The name, age and residential address;

     (d)  The date of commencement of the present term of employment and its anniversary;

     (e)  The rate of wages and the date and particulars of each change in the rate of wages;

     (f)  The annual vacation granted showing

          (i)  The dates of commencement and completion,

          (ii)  The period of employment covered by the annual vacation, and

        (iii)  The amount of vacation pay given;

     (g)  The amount of money paid in lieu of vacation pay if the employee’s employment was terminated;

     (h)  The amount of money paid for statutory holidays;

     (i)  The amount of each deduction from the wages of the employee and the purpose for which the deduction was made;

     (j)  A copy of any notice of termination of employment;

    (k)  The amount of any money paid in lieu of notice of termination of employment.

VII:  Section 61(2) of the Act:  Limitation Period:

Section 61(2) requires that: a complaint may be made at any time with 12 months

after the date on which the subject matter of the complaint occurred. 

VIII:  Section 65(2) of the Act:  Orders:

Section 65(2) deal with the issue of nature of an order.  It states:  If the Employment Standards Officer is unable to determine the amount of wages that are due to an employee because the employer has not made or kept complete and accurate records, or has failed to produce or make those records available, the Employment Standards Officer may determine the amount in any reasonable manner that the Employment Standards Officer considers appropriate.

IX:  Section 75(5):  Conduct of Appeal:

Section 75(5) deals with written hearings.  It states:  An adjudicator may conduct an appeal without requiring oral representation.

X:  Section 79(1b):  Nature of Awards:

Section 79(1b) of the Act states that an Adjudicator may make an award that:  does anything that an inspector or Employment Standards Officer may do under the Act.