Case Shows Why Employers Should Record Hours Worked

By: Joel Fairbrother

Published: 21 October 2024

Document review by an experienced employment lawyer in a consultation meeting.

In A-Apollo Windows & Doors Ltd. v Rohit Mohan, 2024 ABESAB 17, an employee who resigned was awarded unpaid wages, overtime pay, vacation pay and holiday pay based on hours records he provided.

This case is important because it illustrates how important it is for employers to keep accurate records of hours worked.

Facts

The following were some of the pertinent facts summarized by the Alberta Labour Relations Board:

  • The employee Rohit Mohan had originally been offered an Operations Manager position for the employer, A-Apollo Window and Doors Ltd., which was to be a salary position
  • Before he started, A-Apollo changed his position to Office Administrator, and changed his compensation to hourly
  • The employee immigrated to Canada for the position under a closed work permit, which prevented him from working anywhere else
  • In June of 2023, the employee made a complaint to Immigration, Refugees and Citizenship Canada that he was being abused by his employer. Immigration Canada changed his work permit status to “open” so that he could work for other employers
  • The employee resigned shortly after that
  • The employer did not keep records of regular hours and overtime hours for the employee
  • The employee claimed he had kept records of his hours on his work computer, but that was blocked when he resigned. He provided a spreadsheet of hours worked for the claim
  • The employee filed an Employment Standards complaint for unpaid wages, overtime pay, vacation pay, and general holiday pay, against his former employer A-Apollo Window & Doors Ltd.
  • The employee was successful in front of an employment standards officer
  • A-Apollo appealed to the appeal body, which is the Labour Relations Board

Analysis / Conclusion

The employee’s evidence was that he was asked by someone in management to start at 7:00 AM and work until everyone else was gone.  The employer disputed he worked that many hours, and had a witness say he had not heard the employee get told that.

The employer called several witnesses, but not the one the employee claimed had told him he had to work such long hours.

The ALRB accepted the employee’s spreadsheet of hours worked.  The ALRB exercised its discretion to draw an “adverse inference” from the employer’s failure to call a key witness, noting as follows:

[33] Applying these principles, no explanation was provided for not calling Mr. Naidu. Mr. Naidu had material evidence to provide on this point and, having been the other participant in the verbal exchange, was the best person to provide that evidence, and given his role as the company President, it was well within the Respondent’s control to call him.  From this, the Appeal Body concludes that had Mr. Naidu testified, his testimony would have been detrimental to the Appellant’s case; that is, it likely would have confirmed the Respondent’s testimony on this point, which aligns with the work hours reflected in the spreadsheet.   […]

My Take

An employer is generally required to keep records of hours worked and overtime of its employees.  This is not always required for supervisors and some other salary employees, but otherwise it usually is required.

The employee’s evidence in this case was not particularly strong – it was just a spreadsheet he put together and his verbal evidence that he was told to start at 7 and work till everyone was done.  However, his evidence was more than strong enough when there was no persuasive evidence to the contrary.

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