Kingston dental clinic ordered to pay over $16K to former employee

A matter involving a Kingston dental clinic and one of its former employees has once again returned to the litigation arena — this time resulting in an Order to Pay being issued to the employer.

The case, which has been before the Ontario Labour Relations Board well over a dozen times since 2021, was back in front of Board Vice-Chair Brian Smeenk on Monday, Oct. 30, 2023. Kingstonist readers will recall that in June 2023, the Board found that Cataraqui Woods Dentistry (CWD) owed its former employee, whom we will again refer to as Ms. X.

The case centred on a disagreement over whether Ms. X was an independent contractor or an employee during her time working for CWD, as well as whether she was “constructively dismissed” when her employment with the dental clinic ended. Following the June decision, CWD and its owner, Dr. Waji Khan, appealed; that appeal was dismissed in August 2023. Vice-Chair Smeenk oversaw the case each time it ended up before the Labour Board.

The most recent hearing before Smeenk involved the compensation of Ms. X, the “Applicant” in the case. In his October 30 decision, Smeenk noted the last two paragraphs of his first decision on the matter in June, referred to in court Labour Board documents as “the Substantive Decision,” which read:

“…CWD is directed to pay to the Director of Employment Standards in trust on behalf of [Ms. X] all of her entitlements under the [Employment Standards] Act.

“In accordance with the agreement of the parties, the Board retains jurisdiction to deal with any disputes regarding [Ms. X’s] entitlements or any other issue relating the remedies that flow from this decision. If the parties are unable to reach agreement in this regard, written submissions shall be made to the Board within 30 days of the date of this decision.”

Up until the point of the October 2023 hearing, the parties had been unable to reach an agreement and had “made their written submissions as ordered,” Smeenk wrote.

In laying out the positions of the two parties, Smeenk detailed that the “major dispute” between them was whether Ms. X was entitled to compensation for vacation and holiday pay, as well as “minor disputes” regarding calculations.

“On the major issues, CWD takes the position that Ms. [X] is not entitled to compensation for vacation pay and holiday pay. It argues that the mutual understanding of the parties while Ms. [X] worked at CWD was that ‘the compensation provided in exchange for the work performed was inclusive of public holiday pay and vacation pay,’” Smeenks wrote, noting that, conversely, Ms. X argued she was entitled to both public holiday and vacation pay because “neither was paid to her in accordance with the Act and CWD has produced no record to suggest otherwise.”

In Smeenk’s analysis and decision, he concluded that Ms. X was “entitled to further compensation for vacation pay and public holiday pay, and he provided the following reasons:

• Citing the original “Substantive Decision,” Smeenk said he agreed with CWD that his previous finding that the contract signed between Ms. X and CWD was not voluntarily entered into had little weight in the matter before him now. Smeenk disagreed, however, with CWD’s submission that “there was a mutual understanding that the compensation provided… was inclusive” of public holiday and vacation pay.
• CWD conceded that there was no evidence to support said “mutual understanding.”
• Smeenk rejected CWD’s characterization of the “understanding,” noting that the dental clinic had attempted to say that Ms. X was not an employee in the first place and therefore had no entitlements under the Act; therefore, there “was no agreement to pay such entitlements.”
• Further, had there been such an “understanding,” the Labour Relations Board had already concluded Ms. X was an employee of CWD, so that “understanding” would have to be set aside, as the Employment Standards Act (Section 5.1(1) “prohibits an employer from treating a person who is an employee as if they were not.”

“Moreover, there are no payroll statements showing for each pay period the time worked, the rate of pay, and the amount of vacation pay or holiday pay included. CWD, like any employer, is required by Section 12 of the Act to give its employees a written statement with each pay period setting out, to state it broadly, how the pay for the period in question was calculated. This was not done. Given the lack of any such pay statements, CWD’s position must be rejected,” Smeenk wrote.

“In the result, having failed to specifically pay vacation pay and public holiday pay to Ms. [X] during the relevant period and to document it, CWD is obligated to now do so.”

Finally, Smeenk turned his attention to the calculations of the monies owed to Ms. X, which, as mentioned earlier, the two parties had been unable to agree on.

In terms of pay in lieu of notice of termination, the parties agreed Ms. X was entitled to six weeks’ pay. While CWD calculated that to be $12,312,09, Ms. X had calculated it to be $12,444.68. The difference was attributed to the “period of time over which the weekly pay was averaged so as to calculate the weekly pay for the notice period,” Smeenk said, noting that he was satisfied that CWD “used an appropriate period for the purpose of this averaging calculation.” He therefore determined the amount of termination pay in lieu of notice to be $12,312.09.

When it came to statutory holiday pay, the parties agreed Ms. X would be entitled to the pay for 14 such holidays. This time, the discrepancy between CWD’s calculation and that of Ms. X was less than $2, with Ms. X’s calculation the lower of the two. Smeenk noted that the discrepancies again arose from the period of pay being averaged, and again stated he was satisfied that CWD used an appropriate method in its calculations. Therefore, he determined, the statutory holiday pay amounted to $4,562.59.

With regard to vacation pay, the parties agreed this rate “must be paid only in respect of the period between March 18, 2019 (two years prior to Ms. X’s initial complaint) and November 20, 2020 (the end of the notice period).” They also agreed that her entitlement was six per cent of her gross wages during that period. CWD calculated the vacation pay totaled $9003.96, while Ms. X calculated it totalled $8,016.41.

“This difference seems to be based on a discrepancy between the parties as to what Ms. [X]’s gross wages were for the period from January 1 to October 9, 2020,” Smeenk explained.

“I remit this matter to the parties to seek agreement on the proper calculation of [Ms. X]’s gross wages during the relevant period and retain jurisdiction if they are unable to reach agreement.”

In the end, Smeenk concluded that CWD was “ordered to forthwith pay the Director of Employment Standards, in trust” on Ms. X’s behalf, the following entitlements:

• Termination pay in lieu of notice in the amount of $12,312.09;
• Public holiday pay in the amount of $4,562.59; and
• Vacation pay in an amount to be agreed upon by the parties or, “failing agreement, determined by the Board.”

In total, CWD was ordered to pay Ms. X $16,876.68, plus the vacation pay as directed above.