October 22, 2018
Employee filed complaint under Employment Standards Code for vacation pay and holiday pay; employer contended that "vacation pay" in agreement also included holiday pay; umpire found this inconsistent with employer's obligations to keep records and provide written statement separating out vacation and holiday pay under Code
RG Bissett Professional Corp v. Kusick | 2018 ABQB 406 | Alberta Court of Queen’s Bench
Labour and employment law --- Employment standards legislation — Public holidays — Holiday pay
Employee was associate with employer law firm — Parties' Association Agreement (AA) stated that employee's compensation was based entirely on specified percentage of fees and monthly draw, that partners would pay employee gross salary of 40 per cent of his monthly receipts of fees, inclusive of vacation pay entitlement, and that employee would be entitled to maximum of four weeks' vacation during each calendar year — Employee resigned and filed complaint under Employment Standards Code, claiming vacation pay and holiday pay for prior two years — Employment Standards Officer (ESO) rejected employer's contention that "vacation pay" in AA also included holiday pay, held that employer's position was contrary to public policy and plain wording of AA, and ordered employer to pay employee $19,746.32 holiday pay and $33,280.14 vacation pay — Provincial Court judge acting as umpire upheld ESO's order, finding employee entitled to holiday pay under Code and provision in AA that salary include entitlement to vacation pay inconsistent with Code, contrary to public policy, unenforceable and void — Umpire found AA void for inconsistency with employer's obligations to keep records and provide written statement separating out vacation and holiday pay under Code — Employer brought application for judicial review — Application dismissed — Umpire did not err in dismissing employer's appeal and upholding ESO's order — Code was judge's "home statute" in performing functions as umpire pursuant to Code and interpretation of AA in context of factual matrix was question of mixed facts and law, so deferential standard of reasonableness applied — Umpire's choice of interpretation of Code and AA was made in light of existing jurisprudence and with benefit of her expertise and was not shown to be unreasonable — Umpire's articulation of reasons for conclusion were justifiable, transparent and intelligible — Umpire based her analysis on appropriate legislative provisions and her interpretation of Code and Regulation there under were readily defensible.
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