Pizzeria claimed that worker was just observing, but controlled hours and duties deserved wages
An Alberta worker was doing more than just observing a pizzeria’s operations and was actually performing work that deserved wages, the Alberta Labour Relations Board has ruled.
Chicago Deep Dish Square Pizza is a pizzeria in Alberta operated by a numbered corporation that also runs a pub next door. The two businesses share a kitchen.
In the summer of 2019, the worker immigrated to Canada but had difficulty finding a job. Her landlord put her in contact with Chicago Deep Dish and the worker made multiple requests for employment at the restaurant.
The pizzeria’s owner agreed to take her on, but according to him he only offered to provide her with training, she wasn’t hired as an employee, and he didn’t keep records of her hours. The worker believed that she had been hired at the rate of $10 per hour and began working in February 2020. She also thought that once she had sufficient training, her hours at the pizzeria would increase.
Over the next few months, the worker came to the pizzeria on a fairly regular basis. The owner would text her the days and times he wanted her to come and how late she should stay. In one particular text, the owner asked her to “come to work,” although the owner later said that “work” referred to the location, not that she was to perform work.
Owner said training, worker said work
The owner maintained that when the worker was at the pizzeria, she only observed and didn’t perform work. An employee of the adjacent pub reported that she didn’t see the worker doing any work and her limited English prevented her from taking customer phone calls.
However, according to the worker she washed dishes, cut food for pizza toppings, made pizza, removed product from the freezer, and cleaned tables. She also accompanied the owner’s wife on trips to get groceries for the pizzeria.
Sometimes, when the worker’s husband arrived to pick her up at the end of a shift, he had to wait until she finished the shift – including a few occasions when she closed down the pizzeria at 1 a.m.
The pizzeria paid the worker $400 after 15 days of training, followed by another $600 in late May 2020. The worker asked for additional payment, but the owner said that business was slow and the money was a loan to help her send money to her mother overseas. There were no records of the loan or how it was to be repaid.
The pizzeria also provided the worker with a Chicago Deep Dish Square Pizza ball cap and shirt, which the owner said he provided to customers as a marketing practice.
A worker was entitled to pay for helping out during a pandemic office closure, the Ontario Labour Releations Board has ruled.
Unpaid wages
The worker filed a claim for unpaid wages, including overtime pay, vacation pay, and holiday pay based on her handwritten records for the hours she worked.
An employment standards officer found that the worker had performed work and ordered the pizzeria to pay her nearly $5,600, including an order of officer fee. The corporation appealed the order, maintaining that it had never hired the worker.
The board noted that a worker’s entitlement to earnings is guided by the Alberta Employment Standards Code, which defined “work” as providing a service. Based the evidence – including the owner’s text referring to “work,” the text messages outlining the worker’s start and finish times, the worker’s husband having to wait for her to finish her shift because she was required to stay, and the $1,000 paid to the worker – the board concluded that the worker was employed by Chicago Deep Dish to perform work.
In addition, the owner’s claim that the money was a loan lacked any records supporting it and the owner knew that it was unlikely that the worker would be able to pay it back due to her financial situation, said the board.
The board upheld the employment standards officer’s decision, noting that it was reasonable to base the payments on the worker’s handwritten records as they were the only record of her hours worked. The corporation owning Chicago Deep Dish was ordered to pay the nearly $5,600 in unpaid wages, overtime pay, vacation pay, and holiday pay.
See 1611827 Alberta Inc. v. Shrestha, [2022] A.W.L.D. 3738.
