A worker at a Richmond truck repair business is getting another chance to pursue his wage dispute following a successful appeal.
Harminder Singh, who worked at AJ Boyal Truck Repair on River Road as a truck and transport mechanic, previously filed a complaint to recover owed wages.
The Employment Standards Tribunal ruled in favour of Singh in 2023 and ordered AJ Boyal to pay $3,149.39 in wages and $2,000 in administrative penalties.
However, Singh appealed the decision, claiming the process wasn't fair and that he should have received more compensation.
In a decision issued on March 11, a member of the Employment Standards Tribunal sided with Singh and ordered the original decision be cancelled and the case to be referred back for a fresh investigation, which will include an oral hearing instead of just relying on written documents.
Worker questioned fairness of the investigation
Singh began working for AJ Boyal in July 2018 and, according to the 2023 decision, his employment ended in October 2019.
The 2023 decision found Singh was entitled to 24 hours' worth of unpaid regular wages and overtime wages, and that he was also entitled to statutory holiday pay, annual vacation pay and length of service compensation.
However, the deciding delegate found Singh failed to prove AJ Boyal made unauthorized deductions from his wages and decided there was insufficient evidence to support Singh's allegation that he was charged an illegal recruitment fee of $25,000.
In his appeal, Singh claimed the deciding delegate erred in law and failed to observe the principles of natural justice by failing to ensure a fair and efficient investigation, consider all available evidence and adequately assess credibility.
Singh also claimed the deciding delegate failed to consider the "unique vulnerabilities of temporary foreign workers."
The director of the Employment Standards Tribunal denied the claims, arguing there was no error in law or breach of natural justice.
AJ Boyal also claimed the deciding delegate did not make a mistake.
Although AJ Boyal acknowledged Singh was a temporary foreign migrant worker, it claimed Singh was "indulging in unethical (and unscrupulous) activities such as preparing false time sheets in order to get maximum benefits from the employer."
According to his appeal, Singh found an issue with the deciding delegate's handling of the parties' conflicting evidence for audio recordings of conversations submitted by Singh and records of Singh's work hours.
Singh argued his evidence was not adequately investigated. He added the Employment Standards Tribunal investigation failed to request needed evidence, speak with the employer directly and had a delay of more than three years.
He claimed the credibility concerns with the audio recordings and transcripts should be dealt with through an oral hearing and cross-examination.
Singh also disagreed with the decision to accept AJ Boyal's record of his work hours over his own, claiming the deciding delegate accepted the employer's submissions "without reservation or investigation" and demonstrated an "insufficient level of care" when deciding whether Singh had signed time sheets he denied ever seeing or signing.
He added there were "many other elements of the position taken by AJ Boyal that should have compelled a comprehensive investigation and analysis of the credibility" of the employer, "but was ignored during the investigation and decision on (his) complaints."
Parties' credibility needs to be tested, says tribunal member
In the March 11 decision, Employment Standards Tribunal member David Stevenson ordered the case be sent back for a fresh investigation, which will include an oral hearing.
Stevenson found the deciding delegate made an error in law and a breach of the principles of natural justice when dealing with the audio recordings and transcripts by giving them "no weight at all" and not considering the information contained in them.
He also found the deciding delegate "did not have a proper basis" to reject Singh's evidence in favour of AJ Boyal's in terms of Singh's work hours and made the decision without properly assessing the parties' credibility.
For example, the deciding delegate didn't ask Singh why some of his records of work hours were handwritten in a notebook while others were handwritten or typed on clock-in or clock-out forms, and he only had photos of the forms for the last six months of his employment.
Singh's screenshots of himself working early or past closing also contradicted AJ Boyal's assertion that he couldn't have done so because he had no key to the premises, which Stevenson noted was "an issue of credibility that required an oral evidentiary hearing to resolve."
"Both parties contended the evidence provided by the other was falsified, but neither party was given an opportunity to test the other’s credibility in a hearing," wrote Stevenson.
"Nor did the deciding delegate, as a result, have a proper basis for determining which party was credible."
He added the deciding delegate found there was insufficient evidence to show AJ Boyal sought payment from Singh to obtain employment but failed to test the credibility of each party.
Stevenson ultimately decided an oral hearing was necessary.
"I see no prospect the credibility issues that are central to this complaint can be fairly resolved through an investigation and document review alone," he wrote.
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