In Toscana Italian Grill on Mahogany Ltd. operating as Toscana Grill v Hoxha, 2026 ABESAB 15, the Alberta Employment Standards Appeal Body upheld an award for unpaid wages against an employer, and dismissed the employer’s argument that these amounts had already been paid.
This case is important because it illustrates some principles of evidence and highlights the challenges an employer is likely to face if it does not keep records of hours worked by its employees. The case (and commentary) also illustrates some jurisdictional rules employers and employees should be aware of.
Facts
The following were the pertinent facts summarized by the ABESAB:
- The employee Mr. Hoxha worked as a sous-chef for the employer Toscana Grill for 9 or 10 months
- The employer did not keep written records of the hours worked by the employee. He was told to keep track of his own hours
- The employee resigned on April 16, 2025
- The employee reached out shortly thereafter asking for payment of his banked hours, which he thought exceeded 150 hours. The employer’s evidence was that they thought this was the final request of the employee
- The employee did not provide an accounting of his hours to the employer at that time, but picked up a cheque for $3,490
- The employee filed an Employment Standards Code complaint, alleging that he had not been paid many of the hours he worked and was not paid overtime, vacation pay or holiday pay
- The employer defended on the basis that the $3,490, and claimed he received a final paycheque covering any other amounts
- The employee disputed receiving a final paycheque and the employment standards officer agreed with this based on the evidence presented. The employer’s evidence on this point was a screenshot from an accounting program, but there was no paystub in evidence
- The employer’s evidence was that it understood the $3,490 to cover the employee’s worked unpaid amounts from the start of employment to the end of employment
- The employee was successful at employment standards
- The employer appealed to the ABESAB (which is this summarized decision)
Analysis / Conclusion
Vice Chair Nekolaichuk made the appeal decision on behalf of the ABESAB. As a preliminary matter, he dismissed the employer’s late application to amend its grounds of appeal, on the basis that the evidence it sought to rely on was known to the employer prior the prior decision and prior to filing the appeal.
In the original employment standards decision, the employment standards officer had investigated. They determined the how much unpaid overtime, vacation pay and holiday pay the employee accrued in his final six months, and awarded that without deducting the $3,490 from that amount.
The employer argued on appeal that the employee was only entitled to claim for the last 6 months in employment standards, and that any assessment by employment standards should deduct $3,490 from any amounts found owing.
The ABESAB agreed that only the last 6 months could be claimed for in employment standards, but disagreed that the $3,490 should be deducted in these circumstances because there was no evidence to indicate whether the $3,490 related to amounts owed prior to the last 6 months.
The ABESAB noted that there was evidence of the employee working overtime and banked hours from before the final 6 month period considered by employment standards. Although the ABESAB can only award some unpaid amounts going back 6 months, this does not affect an employee’s contractual common law rights to be paid for prior work.
The ABESAB confirmed the employment standards officer had taken the correct approach based on the evidence provided.
Accordingly, the employee was awarded overtime pay, vacation pay, and general holiday pay totaling $5,480.53 plus the officer fee of $548.05, without any deduction on account of the $3,490 payment.
My Take
This case is another example of an employer who may have been better off had they kept their own record of the employee’s hours.
The case may also have turned out differently if the employer had clear evidence that the $3,490 related only to unpaid amounts in the final six months of employment. In that event, the employee may still have had the ability to chase the older amounts (generally going back up to 2 years), but he would probably not have been able to claim those amounts from employment standards directly. He probably would have had to file a civil court claim for those older amounts, which would be more difficult and costly to pursue.
Bow River Law provides these regular legal blog articles for the purposes of legal news, education and research for the public and the legal profession. These articles should be considered general information and not legal advice. If you have a legal problem, you should speak to a lawyer directly.
This blog post is an original work and was first published on Bow River Law’s website blog.
