Karen began working for Like Us Social Media on February 1, 2018. She was hired as a Social Media Assistant where she uploaded company-approved messages and ads onto various social media platforms. Karen was earning $950 per week, not including vacation pay.
George is the general manager of LUSM. On February 7, 2018, George and Karen signed an employment agreement. In the agreement, Karen would be paid time in lieu for any overtime that she worked. It was a very busy time for LUSM and Karen worked many hours of overtime. From February until the end of June, 2018, Karen worked a total of 160 hours of overtime. In June, Karen took a week off and used 40 hours of lieu time and therefore has 120 hours remaining.
On July 1, 2018, Karen was promoted to Social Media Manager. In addition to keeping some of the platform sharing work that she previously performed, Karen is also responsible for recording employee absences and lateness in her work area. She reports this information to George and George makes the decision regarding discipline and termination. Karen now earns $1,050 per week, not including vacation pay.
According to Like Us Social Media policy, Karen is no longer entitled to payment of overtime or any lieu time because she is a manager. George promised to pay out Karen’s banked overtime from her previous position over the next twelve months.
Karen finds that the pace of work has increased. She is now working 60 hours per week on average. From July 1, 2018 to June 17, 2019, Karen did not have any time off work. She is working seven days a week, every week. As a manager she is not paid overtime but her employer does pay her time and a half on public holidays. It is difficult to work on public holidays since her children are home; she would like to spend time with them but she needs the money and is appreciative that the company gives her more than straight time for public holidays.
It was so busy at work that Karen was told she could not take time off from work when she received a call that her child had a very high fever. The child had collapsed at school and was taken to hospital. George told her that he needed her at work and said she would be given a warning for taking time off work to attend to her child. Thankfully, the child’s fever subsided and she was able to work the next day.
At the beginning of December, George noticed that a computer near Karen’s workstation had been vandalized. Although George could not determine who broke the computer, he had the pay of the 10 employees whose workstations are closest to the computer docked for the damage. Karen’s pay was also reduced by $150 to cover the damage.
On April 15, 2019, LUSM’s main client GHI Company announced that it is no longer going to use LUSM’s services. GHI’s business accounts for 40% of LUSM’s sales. Although LUSM is trying to gain new customers, the loss of business has been enormous!
To avoid huge costs of terminating the employment of its employees, LUSM has decided to embark on a new strategy. On May 1, 2019, it announced that, effective immediately, all company health benefits were eliminated. In addition, all managers will have a 25% pay cut. Karen will therefore earn only $787.50 per week.
At this point, George informed Karen that the company will no longer be paying out her earned overtime from her previous position. From February 2018 to May 1, 2019, LUSM had paid Karen a total of $2640 in overtime pay.
On June 5, 2019, Karen was also informed that she was required to agree to a new oral agreement permitting Like Us Social Media to eliminate any unused vacation. Given that it was a busy year, Karen never had the chance to use any of her three weeks of vacation.
Unfortunately, things went from bad to worse! On June 15, 2019, LUSM lost its second major client which accounted for 10% of LUSM’s business.
On June 17, 2019, all 100 employees of Like Us Social Media were informed that their employment would be terminated immediately. Karen was provided with 2 weeks termination pay in lieu of notice via direct deposit to her bank account. However, Like Us Social Media filed for bankruptcy on June 24, 2019 and Karen was unable to recover any additional monies owing to her.
Karen has approached you for help. Your job is to present her case to the Employment Standards Tribunal.
You are to provide a written report in the following format:
Summary of Issues:
This is where you summarize the complaints under the Employment Standards Act, 2000that Karen has brought to you.
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 case law. Outline any tests, if applicable. The text has examples of cases with similar fact scenarios. Use online resources such as canlii.org to find more examples. Separate into subsections for each pertinent issue.
This is where you draft your conclusion and state the remedy sought (what she is owed/entitled to under law). In this case, you are asking the tribunal to award Karen an appropriate remedy.
This is not meant to be an extensive report. Three to four pages maximum should be sufficient to outline your position and present your case.