Date: 20000706
Docket: 2000-301-EI
BETWEEN:
REDVERS ACTIVITY CENTRE INC.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for Judgment
Beaubier, J.T.C.C.
[1] This appeal from a decision of the Minister was heard at Regina, Saskatchewan on June 28, 2000. Naomi Hjertaas of Redvers, Saskatchewan, the Chief Executive Officer of the Appellant was the only witness. Paragraph 6 to 8 inclusive of the Amended Reply sets out the issue before the Court. They read:
6. In response to the appeal, the Minister decided the following:
a) the Worker was in insurable employment with the Appellant for the period October 16, 1997 to October 31, 1998;
b) the Worker had 3,407 insurable hours for the period October 16, 1997 to October 21, 1998.
7. In so deciding as he did the Minister relied on the following assumptions of fact:
a) the Appellant operates personal care homes;
b) the Worker was hired as a group home operator;
c) the Worker's duties included cooking, cleaning, purchasing groceries, dispensing medication, providing entertainment and activities, and accompanying residents on outings;
d) the Worker was assisted by a developmental programmer, an afternoon program worker, a night care worker, and a weekend programmer;
e) the Worker was employed under a contract of service;
f) the Worker worked a regular schedule of 3 days on and 3 days off, or 4 days on and 4 days off;
g) when the Worker worked her shift she normally got some rest between 11:00 PM and 6:00 AM;
h) the Appellant set the Worker's schedule;
i) the Worker earned a set daily wage of $137.04, then $142.52, and finally $151.00;
j) the Worker also earned a set hourly wage for extra hours worked;
k) the Appellant issued T4s to the Worker with earnings of $28,069.00 in 1997 and $25,741.00 in 1998;
l) the Appellant exercised control over the Worker;
m) the Worker performed her services at the Appellant's premises;
n) the Appellant provided all of the tools and equipment required;
o) the Worker was not in a position to incur a profit or loss;
p) the Appellant did not keep track of the actual hours worked by the Worker while the Worker was on her shift;
q) it is not reasonable to conclude that the Worker worked 24 hours per day for three or four days in a row;
r)
subsection 13.2(1) of the Saskatchewan Labour Standards Act
states: "no employer shall require an employee to work or to
be at the disposal of the employer for periods that are scheduled
so that the employee does not have a period of eight
consecutive hours of rest in any period of 24 hours, except
in emergency circumstances within the meaning of subsection
12(4)."
s) the Worker's insurable hours are detailed on Schedule "A" attached to and forming part of the Amended Reply to the Notice of Appeal;
B. ISSUES TO BE DECIDED
8. The issue to be decided is the number of insurable hours worked by the Worker while being employed by the Appellant for the period October 16, 1997 to October 31, 1998.
Betty Jack is the "Worker".
[2] Naomi Hjertaas stated that assumptions 7(b), (d), (e), (h), (i), (j), (k), (l), (m), (n), (p) and (u) are correct. In respect to (a) and (c), the Appellant operates "group" homes and Betty Jack's primary duty was to care for and supervise the care of the home's residents. Respecting (f), the shifts were 3 days on, and 3 days off. Respecting (p), there was no need to track Betty Jack's hours because she worked for a straight 72 hours. (g) was denied. (s) contains, in essence, the Respondent's legal position.
[3] Betty Jack contracted for employment with the Appellant on December 2, 1996 by means of Exhibit R-2 which reads:
REDVERS ACTIVITY CENTRE INC.
Box 418 - Redvers, Saskatchewan - SOC 2H0
Telephone: 452-3544
Fax: 452-6003
December 2, 1996
Betty Jack
Manor, Sask.
S0C 1R0
Dear Betty:
I am very pleased that you have accepted the position of Group Home Operator at the McBain Ave. Home. You will be working opposite ___________. A job description is attached.
Your starting date will be December 19, 1996 with your anniversary date remaining as August 12, 1993, your original date of casual employment. As we discussed the shift rotation will be 3 days on 3 days off. A schedule for December is enclosed.
As a group home operator your rate of pay will be $134.40 per day. Your benefits will be adjusted in accordance with your increased regular salary. Please contact Lorraine Fidelak if you have any questions. The probationary period will be 6 months.
As an employee of the Redvers Activity Centre you are responsible for maintaining a working knowledge of and complying with all Agency Policies and Procedures. A copy of the manual is available at the business office. A meeting for yourself and Carole Edwards will be arranged as soon as possible.
Please sign and return this letter for photocopying if you agree with the terms as outlined above.
Please call if you have any questions. All the best in your new position.
Yours sincerely,
Naomi Hjertaas
Chief Executive Officer
NH/js
Encl.
I accept the above position with terms as outlined.
"Betty Jack"
Name
"Dec. 4/96"
Date
[4] The Appellant operates three "group homes" in Redvers. Betty Jack was hired as a "group home operator" for the McBain Ave. Home. These titles have legislated meanings in Saskatchewan under The Residential Services Act, Chapter R-21.2 S.S. 1984-85-86 as amended and its Regulations. Subsection 2(c) of the Regulations defines Betty Jack's position as an "operator" as follows:
"operator" means any representative of the facility that has control or management of a residential-service facility.
[5] Subsections 8(1) and (2) of the Saskatchewan Labour Standards Regulations, 1995 then state that Sections 6, 12 and 13.2 of the Labour Standards Act of Saskatchewan (Chapter L-R.S.S. 1978 as amended) do not apply to an operator of a residential service facility (namely, Betty Jack). Thereby, respectively, Betty Jack as an operator need not be paid overtime for working more than 40 hours per week, can be required to work more than 40 hours per week, and is not compelled to have 8 consecutive hours of rest in any period of 24 hours.
[6] The reasons for these severe amendments respecting operators is that they are employed to reside in the group homes for shifts of 24 hours per day, in this case for 72 consecutive hours. In the Court's view, they act as a mother to the residents of the group home. There is always at least one other staff member there, but the operator is the supervisor or manager of the home and of its residents.
[7] The McBain Ave. Home was built in 1989. It is a high care home for residents with high care physical and medical needs. It has a more highly qualified staff than some of the Appellant's other homes with residents of lesser needs. The staff prepares meals, does the laundry and the cleaning of the home. But primarily the staff attends to the personal care of the patients. During the period in question three individuals at the home were severely disabled and had to be assisted in everything including being told when to go to the toilet. The other three residents were not quite that severe. Of the three most severe, two were up at all hours of the day and night and the third would make very loud noises at night from time to time and disrupt the home. Betty Jack was responsible for the supervision of the home, for making doctors' appointments for the residents and for attending meetings with them. During the day there were three other staff in the home. From 11:00 p.m. to 7:00 a.m. there was one other staff member on duty. On Saturdays, Sundays and on holidays if no one was in the home and another of the Appellant's operators was in another home in Redvers the operator on duty could leave the home between 11:00 a.m. and 3:00 p.m. if she had no other duties to attend to.
[8] Employment Insurance Regulations 9.1, 10, and 10.1(1) and (2) read:
9.1 Where a person's earnings are paid on an hourly basis, the person is considered to have worked in insurable employment for the number of hours that the person actually worked and for which the person was remunerated.
...
PART I
UNEMPLOYMENT BENEFITS
10. (1) Where a person's earnings are not paid on an hourly basis but the employer provides evidence of the number of hours that the person actually worked in the period of employment and for which the person was remunerated, the person is deemed to have worked that number of hour in insurable employment.
(2) Except where subsection (1) and section 9.1 apply, where there is doubt or lack of specific knowledge on the part of the employer as to the actual hours of work performed by a worker or by a group of workers, the employer and the worker or group of workers may, subject to subsection (3) and as is reasonable in the circumstances, agree on the number of hours of work that would normally be required to gain the earnings referred to in subsection (1), and, where they do so, each worker is deemed to have worked that number of hours in insurable employment.
(3) Where the number of hours agreed to by the employer and the worker or group of workers under subsection (2) is not reasonable or no agreement can be reached, each worker is deemed to have worked the number of hours in insurable employment established by the Minister of National Revenue, based on an examination of the terms and conditions of the employment and a comparison with the number of hours normally worked by workers performing similar tasks or functions in similar occupations and industries.
(4) Except where subsection (1) and section 9.1 apply, where a person's actual hours of insurable employment in the period of employment are not known or ascertainable by the employer, the person, subject to subsection (5), is deemed to have worked, during the period of employment, the number of hours in insurable employment obtained by dividing the total earnings for the period of employment by the minimum wage applicable, on January 1 of the year in which the earnings were payable, in the province where the work was performed.
(5) In the absence of evidence indicating that overtime or excess hours were worked, the maximum number of hours of insurable employment which a person is deemed to have worked where the number of hours is calculated in accordance with subsection (4) is seven hours per day up to an overall maximum of 35 hours per week.
(6) Subsections (1) to (5) are subject to section 10.1.
SOR/97-31, s. 4. (CIF 01.01.97)
10.1 (1) Where an insured person is remunerated by the employer for a period of paid leave, the person is deemed to have worked in insurable employment for the number of hours that the person would normally have worked and for which the person would normally have been remunerated during that period.
(2) Where an insured person is remunerated by the employer for a period of leave in the form of a lump sum payment calculated without regard to the length of the period of leave, the person is deemed to have worked in insurable employment for the lesser of
(a) the number of hours that the person would normally have worked and for which the person would normally have been remunerated during the period, and
(b) the number of hours obtained by dividing the lump sum amount by the normal hourly rate of pay.
...
[9] They are the basis for the decision. Betty Jack was paid per day as an operator. At other times she occasionally worked at an hourly rate in a different position. What is at issue is whether, during the period she worked as an operator, her earnings were paid on an hourly basis under her contract with the Appellant. Exhibit R-2 agrees that her "rate of pay will be $134.40 per day". Therefore her rate of pay was not hourly, it was per diem. The Respondent suggested that Betty Jack stated that she only worked 12 hours per day. There is no evidence of that alleged statement except this alleged hearsay. However in a small rural Saskatchewan town such as Redvers "work" is often the name used for hard physical labour, rather than supervision. As a result that alleged statement is disregarded. Similarly, the Respondent alleged that the per diem rate was based on the hourly minimum wage in Saskatchewan. That may have once been the case, but it was not during the period in question and there is no evidence that Betty Jack understood anything like that. Rather, she agreed to a flat per diem rate.
[10] The question then is whether the employer has provided evidence of the number of hours Betty Jack actually worked in the period of employment. She was required to be at the home for 72 straight hours attending to her duties of employment. But the Respondent states that there are two times when she was not working:
1. When she was allowed by the Appellant to sleep in the home each night while she was nonetheless on call by the night employee to assist or supervise that employee or a resident.
In the Court's view, at that time she was in the Appellant's facility, and used the Appellant's equipment (or tools); she was under the control of the Appellant; she had to comply then with her contract with the Appellant; and she was integral for the Appellant's operation of the home. She was not simply on call through a beeper. Rather she was in the Appellant's home just like a parent is in a family home. The other employee functioned, in the same comparison, like a night maid.
2. On the occasional weekend when Betty Jack might get out of the home for four hours between 11:00 a.m. and 3:00 p.m. if another operator was in another of the Appellant's residences.
Given the incapacity of the residents, this appears to the Court to be so minute a period as to qualify for de minimis non curat lex. Nonetheless (to continue the comparison) it is no different from the exceptional occasion when a mother of 3 small children and 3 older children might get out of her house. Betty remained on call and fully responsible to carry out her duties. The Court takes judicial notice of the fact that Redvers is a community of less than 1,000 people - so that it is not large and distances are not great. That circumstance is no different than an employer who tells an employee in a slack period to go and attend to his own affairs but be back - while the employee continues to be paid on company time. It is merely an incident.
[11] Mrs. Hjertaas testified that the Appellant is of the view that Betty Jack works a 72 hour shift and is remunerated at a daily rate for that employment period of 3 consecutive days. Thus Betty Jack is deemed to have worked 24 hours each day for 3 days, a total of 72 hours, in insurable employment, pursuant to subsection 10(1) of the Employment Insurance Regulations. Moreover, the provisions of Saskatchewan's Labour Standards Act and Regulations indicate that in the province's view this is reasonable. The province is responsible for civil rights in Saskatchewan.
[12] Because Regulation 10(1) applies, the appeal is allowed. Betty Jack is deemed to have worked 72 hours in her 3 day shifts and the Court also finds that as a fact.
[13] However, if Regulation 10(1) did not apply, subsection 10(2) would apply on the basis that the employer and the worker had agreed that the number of hours worked by Betty Jack each day is 24 hours. Given the needs of the home's residents for, in essence, the care of a mother figure, 24 hours are reasonable to the Court as well. That is what Betty Jack and the Appellant agreed to and for this reason, should it be necessary to so find, the Court finds that Betty Jack is deemed to have worked that number of hours per day, namely 24 hours, in insurable employment.
[14] Therefore, the Court finds that it was not necessary for the Minister to establish the number of insurable hours pursuant to subsection 10(3) of the Employment Insurance Regulations.
[15] The appeal is allowed.
Signed at Ottawa, Canada this 6th day of July, 2000.
"D.W. Beaubier"
J.T.C.C.
COURT FILE NO.: 2000-301(EI)
STYLE OF CAUSE: Redvers Activity Centre Inc. v. The Queen
PLACE OF HEARING: Regina, Saskatchewan
DATE OF HEARING: June 28, 2000
REASONS FOR JUDGMENT BY: The Honourable D.W. Beaubier
DATE OF JUDGMENT: July 6, 2000
APPEARANCES:
Counsel for the Appellant: Curtis R. Stewart
Counsel for the Respondent: Julie Rogers-Glabush
COUNSEL OF RECORD:
For the Appellant:
Name: Curtis R. Stewart
Firm: McPherson Leslie & Tyerman
Saskatoon, Saskatchewan
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2000-301(EI)
BETWEEN:
REDVERS ACTIVITY CENTRE INC.,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on June 28, 2000 at Regina, Saskatchewan by
the Honourable Judge D.W. Beaubier
Appearances
Counsel for the Appellant: Curtis R. Stewart
Counsel for the Respondent: Julie Rogers-Glabush
JUDGMENT
The appeal is allowed and the decision of the Minister is vacated in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada this 6th day of July, 2000.
|
"D.W. Beaubier" |
J.T.C.C.