Date: 2009
Author: Daniel A. Lublin
Publication: Metro

Keep accurate records or risk losing the claim

Most of the Canadian workforce is not paid for the minutes or hours that are actually worked. Such dedication may be desirable to employers – but that does not necessarily make it legal.
When Orest Matiowski was hired as a tourism services officer by Lake of the Woods Business Incentive Corporation, a not-for-profit corporation in Kenora, Ont., he was expected to work overtime without any extra pay.
Soon after he was hired, the scope of his job increased and Matiowski began to work longer hours, trading some of his overtime for time off instead. Despite his initial agreement that overtime would be expected, without pay, Matiowski kept track of his overtime hours in a calendar, presumably so that he would have a record of that time. When Lake of the Woods decided that it could no longer continue Matiowski?s position, he was fired. However, since Matiowski was no longer employed, he was unable to take advantage of the significant amount of time off in place of the overtime that he had accumulated and argued that he should instead be paid for those hours. Lake of Woods disagreed. It felt that Matiowski knew that he would not be paid for any of the extra hours he worked when he was hired and that, as a not-for-profit organization, it couldn’t afford to pay him overtime, which is why it had agreed to provide him with time off instead of pay.
Believing that Lake of the Woods had taken advantage of his generosity, Matiowski filed a lawsuit arguing that he had worked 3300 hours of overtime without pay, amounting to around $65,000 of unpaid work.
In spite of Matiowski’s agreement to waive the payment for any overtime he worked, an Ontario judge recently concluded that the provincial employment standards legislation must prevail. Under the legislation, employers and employees can agree to trade overtime pay for paid time off from work. But, where an employee is dismissed before being able to use up the banked overtime hours, the employer must then pay out the difference.
However, unlike the provincial Ministry’s, who place the burden of defending overtime claims on the employer, in a court action Matiowski was required to prove the details of his claim. Even though he was entitled to pay for the accumulated time off, he was unable to accurately quantify the amount that he was owed, according to the judge. Because of the lack of any reliable evidence proving how many extra hours he had worked, Matiowski was awarded a single dollar, which the court found was a ?declaration? that he was correct in his claim. It was unable to award him any further payments without being able to quantify his overtime hours.
Whether it’s a tacit recognition of the prevalence of unpaid overtime or a recognition that legal standards cannot be overlooked, even in difficult economic times, the courts have continued to take a common sense approach to overtime claims. This case is instructive for the following reasons:

• Courts cannot be asked to speculate how much overtime has actually been worked. I instruct clients to maintain a running journal showing the actual hours worked. But even this is insufficient to routinely prove liability. Employees should also preserve dispositive evidence such as emails, time sheets or calendars.
• Employers and employees can agree to various arrangements or be subject to company policies, such as banking overtime hours. However, if that agreement provides the employee with less than the minimum provincial employment standards, it is invalid.
• Provincial labour standards officers can also be asked to resolve overtime di