Geisheimer v. Ascent Real Estate Management Corp. Date:, 2013 BCPC 266

Citation: Geisheimer v. Ascent Real Estate Management Corp. Date: 20130724 2013 BCPC 0266 File No: 13-43324 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: DERRIN GEISHEIMER CLAIMANT AND: ASCENT REAL ESTATE MANAGEMENT CORPORATION DEFENDANT REASONS FOR JUDGMENT OF HIS WORSHIP DONALD W. YULE Appearing in person: Derrin Geisheimer Counsel for the Defendant: Ms. N. Rozenberg Place of Hearing: Vancouver , B.C. Date of Hearing: July 10, 2013 Date of Judgment: July 24, 2013

Introduction [ 1 ] The Claimant seeks to recover unpaid vacation pay to which he claims to be entitled following the termination of his employment as a strata agent with the Defendant. The Claimant gave notice of his resignation by email dated October 25, 2012. He claims the amount of $2500.62, an amount based on 4% of his annual salary from November 16, 2011 to November 8, 2012. [ 2 ] It is not disputed that the Claimant was not paid an additional sum as vacation pay following the termination of his employment.

The Defendant says that either the Claimant was not entitled to payment in lieu of taking actual vacation days or alternatively that the Claimant has used up his vacation days for 2012 because of extra vacation days taken in 2011 and because of extra sick days taken in 2012 that are considered to be vacation days. [ 3 ] Both parties filed and served on each other Amended Trial Statements within a week of the hearing. The Defendant also filed an Amended Reply within a week of the hearing.

Both parties however wished to proceed with the hearing notwithstanding the mutual late delivery of these documents. [ 4 ] The Claimant is licensed under

Part 2 of the Real Estate Services Act RSBC 2004 c.42 as a strata agent. As such, his employment is exempt from the provisions of the Employment Standards Act ( Employment Standards Regulation ) Reg. 396/95, sec. 31(m)). This Court does not have jurisdiction over claims for vacation (holiday) pay required by the Employment Standards Act . The Director of Employment Standards under the Employment Standards Act RSBC 1996 c.113 has exclusive jurisdiction ( Macaraeg v E Care Contact Centers Ltd . ( 2008 BCCA 182 ); Giza v Sechelt School Bus Service Ltd . ( 2012 BCCA 18 ).

The Claimant agreed that by proceeding with his claim in this Court, he was not alleging entitlement to vacation pay based upon the Employment Standards Act notwithstanding that his Amended Trial Statement in paras 3 and 6 seemed to assert otherwise. The Claimant thus agreed that his entitlement to vacation pay was derived from his employment contract. Background Facts [ 5 ] The Claimant commenced his employment with the Defendant on or about November 15, 2010 when the parties entered into a written Contract of Employment.

Schedule ‘A’ to the employment agreement sets out terms relating to commissions, vacation and benefits. The commission payable was 40% of the gross monthly agent fees charged to strata corporations less taxes and subject to all required statutory withholdings and deductions. [ 6 ] The paragraph dealing with vacation in its entirety states: Vacation: The Employee will be entitled to take two weeks, unless otherwise agreed, of vacation during each calendar year during which the Employee works full-time hours, or a pro-rata vacation based on hours worked during the calendar year.

The Employee must arrange for coverage of their portfolio with a strata agent employed by the Company during all vacation time. The Employee will receive the commission stated during vacation.

The Employee will not receive any additional commission or compensation during vacation other than referrals. [ 7 ] A separate heading under “Benefits” states that the Employee is entitled to participate in all standard benefit plans such as medical/hospital, dental, extended health care, long term disability and life insurance. [ 8 ] Between January 30, 2012 and April, 2012, according to the Defendant’s records, the Claimant took 13 sick days. On April 21, 2012, the Claimant went on short term disability. During the 7 day elimination period, the Defendant paid an additional 5 sick days.

The Claimant returned to work on a gradual basis on or about August 8, 2012 and resumed full-time duties on October 1, 2012. In September, 2012, he applied in writing as required by the Defendant for ten days of vacation from October 27 to November 11, 2012. The request was approved. However, the Claimant received an offer of better employment from another employer and accordingly gave 2 weeks’ notice on October 26, 2012, so that his last day of employment would be November 8, 2012.

Because it was necessary to perform the steps required to ensure a smooth transition of his clients to other strata agents at the Defendant, and at the Defendant’s request, the Claimant did not take holidays commencing October 27, 2012. However, on October 29, 2012 the Defendant brought the Claimant’s work to an end by escorting him out of the office premises.

The Defendant continued to pay the Claimant his commissions up to November 8, 2012. [ 9 ] The Defendant’s Employee Manual with respect to vacation entitlements provides in part as follows: Employees with zero to three years’ employment (which includes the Claimant) accrue ten business days’ vacation per year. Vacation is calculated from January to December. All employees must take a minimum of two weeks’ vacation per year. Any vacation time carried over must be taken in the next year or will be lost.

Unused vacation can be carried over from one vacation year to another or paid out with the written approval of the Supervisor. Vacation bookings in excess of two days must be approved by the Supervisor in writing. Employees must verify that their backup staff will be available during the employee’s vacation (Schedule ‘A’ to the Employment Contract contains the requirement that employees must arrange for coverage of their portfolio with another strata agent during all vacation time).

Vacation taken in excess of vacation accrued will be deducted from the employee’s final pay cheque should they leave the company. [ 10 ] The Defendant’s Employee Manual with respect to sick time includes the following: All employees are entitled to five sick days per calendar year. Unused sick days do not carry forward into the subsequent year. If an employee gets sick on vacation, a sick day cannot be used in place of a vacation day. Unused sick days are not paid out upon

termination of employment. Position of the Claimant [ 11 ] The Claimant says that he neither took vacation days nor received vacation pay in 2012, or in the 12 months preceding his last day of employment of November 8, 2012. Vacation pay is a benefit in all forms of Provincial and Federal legislation and statutes, and the Real Estate Services Act does not contain any exclusion of such a benefit. In his Amended Trial Statement, the Claimant has annexed various

definitions of wages, benefits and remuneration from Provincial and Federal Legislation. Position of the Defendant [ 12 ] The Defendant says that neither the BC Employment Standards Act , the BC Labor Code or the Canada Labor Code apply to the Claimant’s employment. The Employment Contract sets out the term relating to vacation, and there is no entitlement to payment in lieu of taking actual earned vacation days.

The evidence on behalf of the Defendant, which was not challenged and which I accept was that the employee on vacation continues to receive all the commissions that the employee would otherwise receive if they were still at work. During the employee’s vacation, another strata agent of the Defendant “covers” for the employee on vacation. It is expected that the employee on vacation will, on other occasions, cover for co-workers when they take their vacations so that generally things will even out.

What is significant about this system is that the “covering strata agent” does not receive extra remuneration for his work and the strata agent on vacation does not lose any remuneration by being away from work. [ 13 ] The Defendant further asserts that the Claimant had “used up” any vacation entitlement for 2012 by having taken five extra vacation days in 2011 and twelve extra sick days in 2012 which are characterized as vacation days.

Thus the Defendant asserts that the Claimant has in fact received more compensation than he was entitled to. [ 14 ] Finally, the Defendant says that by resigning and terminating the Employment Agreement, the Claimant became disentitled to any further benefits. The Defendant also asserts that the Claimant mitigated any loss by immediately obtaining other employment and ought not to obtain double compensation. Discussion and Analysis [ 15 ] In my view the Claimant’s belief that vacation pay is a “benefit” to which he is entitled is misconceived.

The claim to pay in lieu of vacation time taken must be found in the Employment Contract. I note that

Schedule “A” distinguishes between “vacations” and “benefits”. With respect to vacations, the Employee Manual requires all employees to take at least 2 weeks’ vacation per year. [ 16 ] On the other hand, I do not accept the Defendant’s submissions that the Claimant had “used up” his vacation days for 2012 by taking extra vacation days in 2011 and extra sick days in 2012. I reject that submission for several reasons.

First, when the Claimant initially raised the issue of his entitlement to vacation pay, in late October, 2012, after giving notice of his resignation, the only response from the Defendant was that the Employment Contract was exempt from the provisions of the Employment Standards Act so that there was no entitlement to pay in lieu of vacation days. The issue of extra vacation days and sick days was not mentioned in the Defendant’s initial Reply filed March 21, 2013.

The first occasion on which that issue was raised was when the Amended Trial Statement was filed on July 3, 2013 and the Amended Reply was filed on July 8, 2013. Second, the Claimant has produced his vacation request form approved by a supervisor for ten vacation days from October 27 to November 11, 2012. That approval belies the suggestion that the Claimant had already “used up” his entitlement to vacation days to 2012. Third, the Claimant denies being advised that excess sick days were automatically treated as vacation days.

The Defendant’s Employee Manual does not say that excess sick days automatically become vacation days. I conclude that in 2012, because of the Claimant’s condition requiring him to go on disability, the Defendant simply allowed him to have extra sick days. [ 17 ] I do not agree with the Defendant’s submission that by tendering his resignation, the Claimant relieved the Defendant of any obligations with respect to vacation time under the Employment Agreement. Either party was entitled to terminate the Employment Agreement.

By terminating the Employment Agreement on notice, the Claimant was exercising a right provided by the Employment Agreement, and not breaching the Employment Agreement. The Defendant’s Amended Reply does not allege that the Claimant breached the Employment Contract. [ 18 ] Similarly, I do not accept the Defendant’s submission that by obtaining other employment immediately after ending his employment with the Defendant, the Claimant thereby became disentitled to recovery of any vacation pay owing to him under the Employment Contract.

First, the only evidence of when the Claimant actually started work with the new employer is the Claimant’s own evidence that it was around November 15 of November 16, 2012. Second, I think the submission conflates the principles applicable to the assessment of damages for wrongful termination where inadequate notice is given by the employer with the current circumstance which involves an alleged entitlement of the Claimant to holiday pay attributable to the time that he remained an employee of the Defendant. [ 19 ] The nub of this claim in my analysis is as follows.

As of October, 2012, the Claimant had not taken any vacation days in 2012. Page 16 of the Defendant’s Amended Trial Statement is a vacation pay calculator for the Claimant apparently for the period January 1, 2012 to November 8, 2012. It shows zero vacation days taken in 2012. This is consistent with the Claimant receiving approval in September, 2012 for 10 vacation days from October 27, 2012 to November 11, 2012. The Employment Agreement in

Schedule “A” does not provide for vacation pay in lieu of vacation days taken. It provides that the employee will receive commissions during vacation and will not receive any additional commission or compensation during vacation. The Employee Manual with respect to vacation entitlements requires employees to take a minimum two weeks’ vacation per year. The Claimant’s intention obviously was to take his two weeks’ vacation commencing October 27, 2012. That plan changed when he decided to resign and tendered his resignation on October 25, 2012.

In order to ensure a smooth transition of his client’s business to another strata agent, the Claimant continued to work until October 29, 2012 when the Defendant barred him from working further. The Defendant did however continue to pay the Claimant through to November 8, 2012, a period of 8 days when the Claimant was not working.

Schedule ‘A’ of the Employment Agreement

provides for a pro-rata vacation entitlement if the employee does not work full time for the full calendar year. As the Claimant did notwork throughout 2012, but ended his employment on November 8, 2012, his entitlement to vacation days, based on the evidence, was 8.5days. He has in fact been paid for 8 days (October 30 – November 8) when he was not working. On this analysis the Claimant wasentitled to an additional half day of vacation in 2012. The fundamental question remains, however, whether the Claimant is entitled topay in lieu of taking the actual additional vacation time. In my view he is not.

The Employment Agreement distinguishes between“vacation” and “benefits” and with respect to vacation, makes clear, together with the Employee Manual, that employees are to take theiractual vacation days, will continue to receive their commissions during the time they are not at work, but will not receive additionalremuneration. Nicholls v Richmond (1985) (BC SC), 60 BCLR 320 (McLachlin J, as she then was) was a wrongfuldismissal case. The Plaintiff was found to be entitled to 12 months’ salary and benefits in lieu of notice.

In a post-trial application, thePlaintiff sought compensation for annual vacation benefits and statutory holidays which he would have enjoyed had he continued in theemployment of the Defendant Municipality. At page 327, McLachlan J. said as follows: (with respect to the recovery of damages for loss of employment benefits) … it is established that the question is not what the Defendanthas gained by the dismissal, but what the Plaintiff has lost. This loss must be proved on the evidence.

If the Plaintiff fails to show thathe has paid out or lost money, or has otherwise suffered by reason of the absence of fringe benefits, his claim cannot succeed. Theseauthorities run counter to the Plaintiff’s submission that the entitlement to lost benefits should be determined by reference to the benefitsprovided under the contract, without the need to establish that the Plaintiff suffered a loss as a result of being deprived of these benefits. There is no evidence before me that the Plaintiff suffered any pecuniary loss as a result of loss of his annual vacation benefit.

The natureof such benefits is that such remuneration for employment continues while the employee is not required to report for work. The Plaintiffhas been awarded 12 months’ remuneration without any accompanying duty to report for work. In these circumstances, he is notentitled to additional payment for holiday over and above the normal salary. The same reasoning applies to statutory holidays.

I would adopt the words of Macfarlane J. (as he then was) in Vorvis v ICBC (1982) (BC SC), 17 BCL 150 134 DLR (3rd) 727(BCSC) (p. 731); The Plaintiff is being compensated on the basis of a full salary which includes payment for statutory holidays. [20] In my view, this analysis applies to the present case. The Claimant has been paid all the commissions to which he was entitledin 2012. What he appears to have lost is the entitlement not to work for a half day.

It may seem unfair that the Claimant with anentitlement to take holidays, lost a half day of entitlement through his conscientious decision to continue to work to ensure a smoothtransition to a new strata agent to the benefit of the Defendant. On the other hand, it appears that the Defendant granted the Claimant farmore than his entitled number of sick days. [21] In the result however, I conclude that the Claimant does not have an entitlement to payment in lieu of vacation days not takenand has also not established a pecuniary loss entitling him to compensation.

Accordingly, the action is dismissed. [22] In the circumstances the parties should bear their own costs. Donald W. Yule, QC