By Patrick Penner | Tri-Cities Dispatch
A Port Moody food truck company must pay more than $2,100 in wages and penalties to a former cook after the B.C. Employment Standards Tribunal dismissed its appeal, ruling there was no legal basis to offset the debt with so-called “advance payments.”
In a decision released April 17, tribunal member Alysha Bennett upheld a July 2024 determination that BC Taco Restaurant Group Ltd. violated several sections of the Employment Standards Act (ESA) and must pay former employee Abel David Sanchez Florentino for unpaid earnings, including overtime, vacation pay, and statutory holiday wages.
The company, which operates two taco trucks in Port Moody, had appealed the decision on two grounds: first, a breach of the principles of natural justice; and second, that new evidence – specifically, receipts showing advance payments – were not properly considered.
But Bennett found neither argument convincing.
“The receipts simply record payments purportedly made by . . . BC Taco to the Employee. The receipts do not authorize a deduction from the employee’s wages. They assign nothing. In fact, it is questionable whether the receipts reveal a credit obligation on behalf of the employee at all,” Bennet stated.
At the centre of the appeal were three receipts BC Taco claimed it loaned to Florentino in 2021, totalling $6,552. The company argued these payments were advances on future wages and should reduce the amount of unpaid wages owed.
But Florentino denied ever receiving the money and claimed the receipts were fake. He told the ESA investigators that BC Taco owner, Carlos de Ibarrola, forced him and other workers to sign the receipts during a 2021 Service Canada investigation.
If he didn’t, de Ibarrola threatened to report him to immigration authorities, and said both he and the company would suffer consequences, according to Florentino.
Florentino also said he never received these payments, he was never given copies of the receipts and that BC Taco never treated the amounts as loans – until after he filed his complaint in 2023.
Ruling stands
Following the original investigation, the director of employment standards issued a ruling requiring BC Taco to pay Florentino $2,181.34 in wages and interest and levied two administrative penalties.
The determination found discrepancies between Florentino’s wage statements and his timesheets – some periods showed overpayments, others showed underpayments. However, the director concluded that under the ESA, employers may not unilaterally deduct overpayments to balance out shortfalls in later pay periods.
The same logic, the tribunal found, applied to BC Taco’s claimed advance payments.
“Where an employer gives an employee an advance on wages, the employer is not permitted to unilaterally deduct or withhold from future wages,” said Bennett, unless the employee has signed a clear written agreement.
The receipts provided by BC Taco did not meet that legal threshold. The tribunal questioned whether the receipts demonstrated a loan obligation at all.
“There is no evidence that the employee agreed, in writing or otherwise, to allow BC Taco to deduct the advance payments from his future wages,” Bennett stated.
BC Taco also argued the director had failed to properly consider its evidence, amounting to a breach of natural justice.
But the tribunal found the company had ample opportunity to respond to the allegations and was given full access to the investigation file, including a chance to correct or supplement the record. The tribunal noted all submissions – including the disputed receipts – were reviewed in the initial ruling.
“There is no evidence before me that would cast doubt on the adjudicating delegate’s neutrality in the matter,” Bennett stated.
Finally, the tribunal rejected BC Taco’s claim that the receipts constituted “new evidence” unavailable during the initial process. The records had, in fact, been submitted and considered during the original investigation and appeared in the final report.
Even if they had been new, Bennett ruled they lacked sufficient “probative value” to alter the outcome.
The appeal was dismissed with the tribunal ruling it had no reasonable chance of success. BC Taco must now pay the full amount owing, plus any additional interest accrued since the original order.
The decision closes the door on BC Taco’s attempt to reverse the wage order. If the company wants to pursue reimbursement for the alleged advances, Bennett noted, it must do so through other legal avenues – such as civil court.
