A restaurant paid cash to settle overtime, but never said what for
An Alberta restaurant paid a departing cook thousands of dollars in cash to settle unpaid overtime, but could not say what period the payment covered. Its appeal over the debt was dismissed.
In a decision dated Aug. 20, 2026, Vice-Chair Gordon Nekolaichuk of Alberta's Employment Standards Appeals dismissed the restaurant's appeal, confirming an order requiring the employer to pay a former sous-chef $5,480.53 in unpaid overtime, vacation pay and general holiday pay, along with a $548.05 fee.
Self-tracked hours pile up into a bank of overtime
The dispute traces back to a kitchen job that began no later than July 2024, when the worker started as a sous-chef earning $19 an hour under a contract signed that June. The restaurant left it to him to track his own hours instead of keeping its own records, according to the owner's testimony. He regularly worked more than eight hours a day, banking any hours beyond 88 in a pay period rather than being paid overtime.
The arrangement ended when he resigned on April 16, 2025. Days later he texted the owner asking to be paid for his banked hours, prompting an employment standards officer to investigate. The law limited how far back the officer could look, six months for wage and overtime claims and two years for vacation and holiday pay, so the review covered hours worked between Nov. 14, 2024, and March 26, 2025.
The officer found the restaurant had overpaid regular wages during that stretch, since hours that should have drawn overtime were paid at straight time instead. After crediting the employer for that overpayment, the officer calculated 203.5 hours of overtime were owed, working out to $4,013.75 in overtime, $1,170.02 in vacation pay and $296.76 in general holiday pay, without factoring in either the April or May payments.
Two payments, but no record of what they covered
Two payments made after the resignation became the focus of the appeal. Both sides agreed the worker received $1,368.34 on April 15 for hours already worked. The restaurant maintained it paid a further $1,236 on April 30, despite the worker having done no work after April 15, which the worker denied ever receiving.
Nekolaichuk sided with the worker on the April 30 payment. Every other payment in the file was backed by a standard pay stub showing deductions and a deposit. The only record offered for April 30 was a screenshot from a different payroll program listing 88 regular hours next to a field called "Current Accrual – Vacation Pay Accumulator," with no deduction, deposit or account information, and a total that did not even match what 88 hours of pay should have come to.
The second payment, $3,490 cash handed over by a manager at another company location on May 2, was not in dispute; the worker agreed he received it. What period the payment was meant to cover became the central issue on appeal. His only communication on the subject was a text saying he believed he was owed "more than 150 hours" and would have to confirm the total. The owner testified he understood the payment settled everything back to July 2024, but the board found no evidence tying the cash to the months the officer had assessed.
A late bid to change the appeal, then a final ruling
Before the merits were argued, the restaurant tried to add two new grounds of appeal roughly a week before the hearing, seeking to challenge the officer's finding that the worker was not a manager and the officer's calculation of his hours. Nekolaichuk refused, finding that the employer, represented by legal counsel when it filed its original notice of appeal months earlier, already had access to that information.
Allowing the change would have unfairly widened the case against the worker so close to the hearing, Nekolaichuk found, so the appeal proceeded solely on the original argument, that the April and May payments should be deducted from the amount the officer had ordered the restaurant to pay.
The restaurant bore the burden of showing its payments lined up with the period the officer had assessed, and could not meet it. Nekolaichuk dismissed the appeal and confirmed the order in full, along with the $548.05 fee.
See Toscana Italian Grill on Mahogany Ltd. operating as Toscana Italian Grill v Hoxha, 2026 ABESAB 15
