In Abdulaal v Chocoland Ltd, 2026 ABESAB 13, the Employment Standards Appeal Body ordered an Employer to pay its former Employee outstanding wages of $9,780.78, vacation pay of $1,391.23, and general holiday pay of $1,130.43 in circumstances where there was a “significant absence of evidence” regarding the Employee’s wages.
Critically, the Appeal Body found the Employer – not the Employee – responsible for the lack of evidence. The Employer had not provided the Employee with paystubs or a written employment agreement and had not participated in the proceeding to offer its own evidence and/or contest the Employee’s assertions. The Appeal Body exercised its authority under sections 87(2) and 107(1)(b) of the Employment Standards Code to award the Employee the wages, vacation pay, and holiday pay he had sought.
The Appeal Body acknowledged receiving an unorthodox letter from legal counsel for a third party connected to the Employer which raised legal arguments as to why said third party should not be liable for the Employee’s wages. The Appeal Body found the letter to be irrelevant to the issues before it and that unsworn information provided by legal counsel was not proper evidence in any event. The Appeal Body did not consider the letter in deciding the appeal.
Facts
The key facts are as follows:
- Abdulaal (the “Employee”) started working for Chocoland Ltd (the “Employer”) on August 1, 2023, and ceased employment on April 21, 2024.
- The Employee managed the Employer’s store and kitchen, working from approximately 5:00 pm until midnight seven (7) days a week. Some days he would be at the restaurant at or before 12:00 pm noon to open the store.
- The Employer paid the Employee $2,000 by cheque twice a month.
- There were occasional issues with cheques being returned for insufficient funds. The Employer usually rectified those issues, and the Employee was fully paid until January 2024.
- The Employer provided the Employee with a cheque in January 2024 but told him not to cash it yet as there were insufficient funds. This was never rectified.
- The Employer provided the Employee with a cheque in February 2024 which bounced.
- The Employee received another cheque for $1,000 in February 2024 from a different company he understood to be owned by the Employer.
- The Employee continued to work through March and April but received no cheques or pay at all.
- The Employee filed an Employment Standards complaint seeking wages, vacation pay, and general holiday pay from the Employer.
- The Employer did not respond to the original investigation by Employment Standards and did not participate in the ensuing appeal.
- An Employment Standards Officer noted a “paucity of evidence” supporting the Employee’s claims and determined that the Employer owed the Employee only $1,000 in earned but unpaid wages.
- The Employee appealed the Officer’s decision seeking additional amounts for wags, vacation pay, and general holiday pay.
Analysis / Conclusion
The Employee testified that he had not received an employment agreement or paystubs from the Employer. The evidence before the Appeal Body was therefore limited to the following:
- A returned item notice from the Employee’s bank returning a cheque for $2,000 from the Employer dated October 25, 2023, for insufficient funds;
- A copy of a cheque for $2,000 from the Employer dated January 31, 2024;
- Two copies of a returned item notice from the Appellant’s bank returning a cheque for $1,000 from the Employer dated February 15, 2024, for insufficient funds;
- A T4 from the Employer to the Employee in 2023 showing employment income of $16,617;
- A variety of pictures showing the Employee working in the restaurant;
- A deposit and withdrawal history of a bank account for the Employee from August 2023 until June 2024, though there was no obviously discernable regular pattern of deposits which could be easily inferred to be pay cheques during that period; and
- Testimony from the Employee and four (4) other employees regarding the hours the Employee had worked and their collective difficulties in getting paid by the Employer.
The Employment Standards Officer had originally found there to be a “paucity of evidence” supporting the Employee’s claims and specifically struggled to find credible evidence regarding the Employee’s claim to a salary of $4,000 a month. The Officer therefore limited the amount recoverable unpaid wages to $1,000, stating that there were “no credible and accurate records of evidence” upon which to assess the other claims.
The Appeal Body agreed that there was “a significant absence of evidence” but found the Officer’s response to be inappropriate. There was a credible basis to accept the Employee’s estimate of hours worked and the Employee was at least entitled to the minimum wage for that work. Evidentiary difficulty in determining wage rate, especially when said difficulty is created by the Employer, cannot result in no wages where there is credible evidence of work being done and credible testimony of non-payment.
The Appeal Body relied on section 87(2) of the Employment Standards Code, stating: “these are the types of difficult evidentiary situations that section 87(2) is designed to protect”. Section 87(2) states:
if an officer is unable to determine the amount of earnings to which an employee is entitled … because the employer has not made or kept complete and accurate employment records, or has failed to make those records available to the officer for inspection, the officer may determine the amount in any manner that the officer considers appropriate.
The Appeal Body acknowledged that the Employee’s difficulties in proving his wage rate were attributable to the Employer’s own actions, and specifically to the Employer’s failure to provide paystubs or respond to Employment Standards’ original investigation. In the absence of contradictory evidence from the Employer, the Appeal Body had a credible basis to exercise its discretion under section 87(2) and assess a wage rate of $4,000 per month.
The Appeal Body awarded the Employee outstanding wages of $9,780.78, vacation pay of $1,391.23, and general holiday pay of $1,130.43. The Employee had not sought overtime pay.
My Take
Abdulaal v Chocoland Ltd highlights the evidentiary difficulties which may arise where an Employer does not keep accurate records and/or fails to participate in the Employment Standards process. The Appeal Body rightfully identified section 87(2) as an appropriate statutory tool by which Employment Standards can address such evidentiary deficiencies in a way that is fair to employees – who are often at the mercy of their employer to keep and maintain accurate employment records.
The decision is not an outlier. The Appeal Body has consistently ruled against Employers who fail to keep or produce accurate records – as it is entitled to do so under the Code. Absent any major legislative changes, the failure to keep records or participate in the Employment Standards process will not spare delinquent employers from liability.
For employees, the decision suggests that an employer’s poor recordkeeping should not be viewed as a barrier to advancing potential Employment Standards complaints, particularly in circumstances where the employee can prove that they at least did the work. Here, the Employee provided pictures and other evidence of them working for the Employer – allowing the Appeal Body to exercises it discretion under section 87(2) to “fill in the gaps” left by the Employer.
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