need some legal advice regarding small claims court

[danew]

I worked at a automotive shop for a year and a half. Due to a MVA I was unable to work. I asked my work place where my stat pay was and they said they do not give stat pay. I have not written any agreements and I know it is mandatory to get paid for stats.

I have sent them a letter from labor relations and they agreed to pay it but only for the last 6 months that Ive worked there for AND also threatening me if I took it they would do certain things.

So I decided to not take it yet till i consulted my lawyer. Now can I take them to small claims court to get my full amount back? I also read online that they can disregard it and I would have to pursue to get the money back myself.. is this true? thanks

[XplicitLuder]

id ask this in the police forum probs ?

[danew]

sorry can mod move this to the correct forum please? thanks

[Gt-R R34]

Employment Standards Act

Part 5 — Statutory Holidays




Entitlement to statutory holiday

44 An employer must comply with section 45 or 46 in respect of an employee who has been employed by the employer for at least 30 calendar days before the statutory holiday and has

(a) worked or earned wages for 15 of the 30 calendar days preceding the statutory holiday, or

(b) worked under an averaging agreement under section 37 at any time within that 30 calendar day period.




Statutory holiday pay

45 (1) An employee who is given a day off on a statutory holiday, or is given a day off instead of the statutory holiday under section 48, must be paid an amount equal to at least an average day's pay determined by the formula



amount paid ÷ days worked




where





amount paid

is the amount paid or payable to the employee for work that is done during and wages that are earned within the 30 calendar day period preceding the statutory holiday, including vacation pay that is paid or payable for any days of vacation taken within that period, less any amounts paid or payable for overtime, and



days worked

is the number of days the employee worked or earned wages within that 30 calendar day period.


(2) The average day's pay provided under subsection (1) applies whether or not the statutory holiday falls on the employee's regularly scheduled day off.




If employee is required to work on statutory holiday

46 An employee who works on a statutory holiday must be paid for that day

(a) 1 1/2 times the employee's regular wage for the time worked up to 12 hours,

(b) double the employee's regular wage for any time worked over 12 hours, and

(c) an average day's pay, as determined using the formula in section 45 (1).




Repealed

47 [Repealed 2002-42-23.]




Substituting another day for a statutory holiday

48 (1) An employer may for one or more employees at a workplace substitute another day off for a statutory holiday if the employer and the employee or a majority of those employees, as the case may be, agree to the substitution.

(2) Any employees affected by the substitution of another day for a statutory holiday have the same rights under this Act and their employer has the same duties under this Act as if the other day were a statutory holiday.

(3) An employer must retain for 2 years records of agreements made under subsection (1).

[danew]

yes Ive read all of that and I know labour relations WILL get back up to 6 months of my stat pay but my question is:

can I take them to small claims court and sue them for it?
Will I have to pursue them to get my money back if I won?
Can I get back more then 6 months of my stat pay?

thanks

[Presto]

How sketch is this company? Do they do a lot of work, off the books? If they're threatening you, you should have CRA pay them a visit.

[dangonay]

Don't need a lawyer - just take them to small claims court yourself - it's quite easy to do. I've done it a few times in disputes I've had (won every time so far ).

Only a couple things you need to make sure of:

- Get the correct company/business name. This can be a sticking point in court so make sure of this. If they are a corporation (limited liability company) you can do a name search to get their details. This will cost you probably $40 from a search registry but you can claim this expense back in court.
- Send them a registered letter stating your demands. Give them 10 days to pay. You will need this letter when you file to prove you notified them of your intention to sue and that you did give them 10 days.
- File your claim. If you go online they even have a step-by-step process to walk you through everything. Pay your $100 to file and wait for a court date (you also get this $100 back if you win).

[danew]

^ oh awesome thanks for all the info!

I did some more researching. IF the company doesnt pay me and ignores the court orders. What happens? It says I have to go after them? Well most likely I doubt they would not pay after all that hassle..

I would say the company is pretty sketch. Just found out no workers there ever got stat pay. Some being there for more then 8 years! Overtime is paid in cash so I dont know how that works.

[Presto]

^^^

You should threaten them with a call to the CRA. If they're cheating workers, they're probably cheating the government, too. You can commit all the crimes you want, and get a slap on the wrist, but screw with the government's tax income, and you'll get the horns.

[TheNewGirl]

You're better off going through Employment Standard's adjudication process which will result in a binding order to pay if the adjudicator sees your claim as valid.

[no_clue]

Are you paid salary or hourly wages?

[danew]

I'm paid hourly and know that employement standards get ONLY up to 6 months. I now want my full amount back because they are lying and threatening me.

However I am not going to report them to CRA because I'f I did that I'm just as low life as them.
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