75 OFW’s in Canada Win More Than $1.3-M Settlement

by Joseph G. Lariosa

CHICAGO (FAXX/jGLi) – On Aug. 3, 2010, Alfredo Sales filed a formal complaint against his employer, Northland Properties Corp., owners of the transnational chain Denny’s Restaurants, to reimburse his airfare costs.

Seven days later on Aug. 10, 2010, Sales was fired from his job in retribution for filing the complaint.

Undeterred, Sales pursued his complaint and added “retaliation for bringing his first complaint” as a ground.

Although, he filed the complaint beyond the required six-month statute of limitation (prescription) period, the government Employment Standard Board waived the limitation requirement and ordered Northland to refund his airfare expenses and to pay his overtime work hours in the amount of $7,25.39 in lost wages and interest and administrative penalty of $500.

Sales’s victory inspired more than 70 Overseas Filipino Workers (OFW’s) similarly situated in Vancouver, British Columbia to come forward to join a class action suit brought before Justice Shelley Fitzpatrick of the Supreme Court of British Columbia in Vancouver

In an unprecedented ruling for the temporary workers, Justice Fitzpatrick said the Court recognizes “the particular vulnerability of the class members to prosecute” such court action. As “recent immigrants to Canada,” they are “not particularly sophisticated parties in the conduct of litigation. Allowing this matter to proceed by way of a class action will allow them to have counsel, who can assist in marshalling their evidence.”

Fitzpatrick ruled on March 5 that Northland Properties and “third parties” violated the workers’ contract for non-payment of their overtime hours, employment fees and two-way air transportation, their fiduciary duty to the workers, good faith and fair dealing and had unjustly enriched themselves at the expense of the workers, failed to monitor and accurately record all hours worked, and penalized the company with punitive damages and to pay complainants’ lawyers.

The case, heard on Aug. 29 and 30, 2011, was filed by Herminia Vergara Dominguez on behalf of the complainants, mostly Filipinos. The case did not go trial. Dominguez and company came to Canada under Temporary Foreign Worker Program (TFWP) administered by the Human Resources and Skills Development Canada (HRSDC) and Citizenship and Immigration Canada. TFWP permits them to come and work in Canada on a temporary basis in areas or occupations where there are labor shortages.

TFWP only allows worker to work for the same job description, employer and address applied for.

Dominguez applied for a job as a food and beverage server of Northland in 2008 to join her husband, Christopher Dominguez, who came ahead of her on months earlier also under TFWP.

HIRED AT $9.80 PER HOUR FOR 2 YEARS

Dominguez sent her resume to International Caregiver Employment Agency (ICEA) in Richmond, B.C.. ICEA operates a recruitment agency in Manila, the Luzern International Manpower Services Corporation.

After getting a positive “Labour Market Opinion” (LMO), Mrs. Dominguez was hired at $9.80 per hour for a 24-month period. She paid ICEA with initial $3,000.

In her contract, Dominguez was to work a 40-hour-work week plus 50% more beyond the regular wages for any hours worked over the limit.

The employer shall not charge Dominguez recruiting fees even to a “third-party” recruiter. The employer shall also assume the cost of the two-way air transportation from the Philippines to Canada. The employer shall also follow “relevant provincial labour standards,” including wages, overtime, meal periods, statutory holidays, annual leave, family leave, benefits and collective agreement that will be in favor of the employee.

Luzern collected from Dominguez an additional “$2,750 to continue the process” of her application. She also purchased $1,000 airfare ticket from “Luzern but refused to provide” her receipt.

She started work at Denny’s Restaurant on Davie Street in Vancouver a few days after arriving in Canada on Jan. 26, 2009.

When she noticed that she was not getting paid for her overtime work, Dominguez complained. But when she was given reduced hours, she stopped complaining.

When her co-worker, Alfred Sales, complained for not getting a refund of his airfare and for not getting paid for his overtime work and was fired, nobody followed suit. But when Sales won in his complaint, alleging being fired for retaliation, Ms. Dominguez and others joined the class suit.

Charles Gordon, one of the two lawyers for the plaintiffs (the other lawyer is Chris Foy), said in a press release emailed to this reporter, the workers will be reimbursed for loss of hours and overtime, airfare, and employment agency fees paid. Denny’s will pay the legal fees and expenses incurred by the workers in bringing the case and in administering the settlement. Denny’s will also pay $80,000.00 to charity.

WRITTEN REASONS FOR THE DECISION DUE IN COMING WEEKS

The settlement will cost Denny’s in excess of $1.3 million.

Justice Fitzpatrick will be “issuing written reasons (of her decision) in the coming weeks.”

Plaintiff, Herminia Dominguez, said, “The Settlement Agreement is a great success. To finally see smiles and hear some laughter from the families of the Class who have been waiting for this great news.”

Bobby Naicker, President of Denny’s, stated: “We have always maintained that our foreign workers would be fully paid for the valuable work they provide and this settlement accomplishes that objective. Our foreign worker recruitment program has been reviewed to ensure that the same accounting errors are not repeated in the future.”

For her part, Attorney Heidy Melissa Arango, who is also handling a separate case filed by Filipina caregivers and PINAY in Montreal, Quebec against the Quebec Human Rights Commission, said, “The judgment of the B.C. Supreme Court gives hope to those temporary workers who are victims of discrimination and exploitation. This judgment demonstrates that it is possible for the victims of discrimination and exploitation to obtain justice.

“Temporary workers should get access to justice, equal protection and equal benefit of the law as any Canadian citizen. Justice Fitzpatrick’s judgment should encourage Quebec Courts to do the same. “

Evelyn Mondonedo, former president of human rights group, PINAY, who has a pending case being handled by Attorney Arango, said, “It appears that any businesses or capitalist can just do things like; cheat, deceive, abuse and discriminate and exploit migrant workers without being punished. Can you believe it?

“An advanced society allows this to happen, a society that proclaims themselves to be on the top of protecting violation of individual charter of rights and freedom and who strongly criticizes other nations of human rights violation?”

Another human rights advocate in Montreal, Mr. Fo Niemi, Executive Director of a civil rights group Center for Research-Action on Race Relations, said, this Dominguez case is a “very positive and significant milestone for our national battle against exploitation, discrimination and the violation of basic civil rights of foreign workers. Let us replicate this kind of action and achievements in every Canadian city where migrant and immigrant workers are present and subject to such abusive practices, especially in
Montreal where there is still so much institutional denial that the problem exists.”

Denny’s is the largest “family-service restaurant in America” with 21,000 employees in 1,600 branches and grossed a system-wide sales of $2.4B in 2007. (lariosa_jos@sbcglobal.net)

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PHOTO CAPTION AND CREDIT

MIGRANTE, B.C. & UFCW CANADA RALLY: The Denny’s Restaurant at 1098 Davie St. in Vancouver, British Columbia on March 26, 2011, was a beehive of rallyists when Migrante, B.C., UFCW Canada and other human rights groups in Vancouver join the restaurant’s Filipino Overseas employees, who complained of labor violations by the restaurant chain. (Photo courtesy of Migrante B.C’s. Photo Gallery)

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