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Fired nanny gets $10,000 in back pay

Posted by on Jul 29, 2012 in HR Issues, Legal, Moneyville | 0 comments

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         July 23, 2012

A Toronto live-in nanny who was fired was awarded $10,000 in back pay because the Ontario Labour Relations Board found that her employers had to compensate her for time on duty even if no specific work had been assigned.

The sum would have been higher if there had not been a $10,000 cap on the amount payable under the legislation.

Agripina Likhanga arrived in Canada from Sri Lanka in 2009 under the Federal Government’s Foreign Worker Program. On July 28, 2009 she signed a two-year contract with Timothy Leys and Kirsten Thesberg. She was fired on April 14, 2011 for undisclosed reasons.

Related: Dissing your boss could get you fired

The agreement stipulated a 40 hour work week, wages of $400 per week (minus room and board), and two weeks of vacation per year. Her duties as described in the contract included child care and supervision, laundry, light housekeeping and meal preparation.

The employment contract did not stipulate that Likhanga would work a reduced 15-hour work week during the six or seven weeks a year that the couple and their children were out of town on vacation. The couple maintained this reduced work week was understood and that because Likhanga was paid her full amount during those weeks, an averaging agreement was in place.  More hours worked at a later date would make up for the shorter work weeks.

The evidence about what hours Likhanga worked was conflicting. A sample schedule used for hiring purposes contemplated a 48.5 hour work week.  However, the couple testified that they prepared a weekly to-do list they said should have taken 38 hours to complete.

In contrast, Likhanga said she often worked 13-hour days, starting at 6 a.m. when the parents left for the gym and ending at  7 p.m.  She said she was asked to clean up from parties on weekends, work on statutory holidays and claimed she was unable to take her two weeks of vacation.

Related: Can the boss cancel your vacation?

She said tasks assigned while the family was away were impossible to complete within a 15-hour week. Also, she felt she was on duty all the time as she was responsibility for the family dog and cat.

Ontario Labour Relations Board Vice-Chair James Hayes rejected the couple’s argument that Likhanga was only entitled to be paid for the actual number of hours she was doing work. He said that even when no work has been assigned,  an employee is not free to leave the workplace and pursue personal endeavours.

Hayes decided that the couple owed Likhanga  almost $13,100 in unpaid wages, but because the Employment Standards Act limits the amount payable to $10,000, Likhanga could not receive the entire amount.

Related: Fired? Be careful where you sue

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