An Ontario-based company owned by security giant Garda failed to appropriately compensate employees and misled them about the existence of a so-called averaging agreement to avoid paying overtime, a proposed $25 million class-action lawsuit claims.

According to the class action, which requires court approval to proceed, Garda subsidiary Primary Response also instructed security guards to arrive 15 minutes before their official start time to perform unpaid duties and made illegal deductions from their paycheques for uniform expenses.

 “This is about defending core employment standards protections for a group of precarious workers facing well-documented barriers to enforcing their rights,” said Joshua Mandryk, a lawyer with Toronto-based labour law firm Goldblatt Partners, which initiated the suit.

“Although the law is quite clear, off-the-clock work and unpaid overtime similar to that alleged in this case are all too common in our economy. We hope this case sends a strong reminder that ‘off-the-clock’ time required by an employer is work which must be compensated.”

The statement of claim was served Tuesday. Garda is the sole owner and operator of Primary Response after purchasing the company, which employs around 2,000 security guards across Ontario, earlier this year. The proposed class action spans from August 2016 to the date it receives certification from the courts.

Primary Response directed the Star to Garda when asked to comment on the suit. In an emailed statement, a spokesperson for Garda said “the alleged accusations happened under the previous ownership.

“The judicial process will follow its course, therefore GardaWorld will not comment further,” the statement said.

Representative plaintiff Kionna Horner worked for the company Primary Response as a security guard at Conestoga College in Kitchener between 2016 and June 2018. In a statement, she said she was stepping forward because she “witnessed firsthand how many security guards were afraid to file individual employment standards complaints.

“By joining together to file this lawsuit, we can stand up for our rights without fear of reprisal.”

Worker advocates have raised concerns that precariously employed workers across many sectors do not file complaints for fear of reprisal. Research conducted for a two-year review of the province’s workplace standards found that more than 90 per cent of the approximately 15,000 annual complaints made to the Ontario Ministry of Labour are filed by people who have left or lost their jobs — bolstering criticism that workers struggle to come forward without risking their livelihood.

Mandryk said the ministry had already issued numerous orders to Primary Response to pay thousands of dollars in unpaid wages following complaints made by workers.

Overtime averaging agreements allow workplaces to average employees’ excess hours over a fortnight, limiting their entitlement to time-and-half pay when they work more than 44 hours a week. The agreements require approval from the Ministry of Labour, which the Goldblatt class action says Primary Response was denied last year after its first agreement expired.

The statement of claim says the company “unlawfully concealed” that fact from workers and then continued to average their overtime hours. It also alleges Primary Response failed to accurately monitor and record employees’ hours and failed “to compensate the class members as required for all hours worked.”

Citing excerpts from the company’s employee handbook, the statement of claim says workers had to be at their job site 15 minutes prior to their shift, during which time they were required to have a “shift change conversation” with their supervisor.

The class action also alleges that Primary Response made unlawful deductions for uniform expenses; the province’s Employment Standards Act says employers can’t withhold wages or make deductions from workers’ paycheques unless required by a court order or where the employee has provided written consent.

“Security guards work long hours in challenging and potentially dangerous situations. Like all workers, they deserve to be paid fairly for their hard work,” said Goldblatt co-counsel Christine Davies.

The private security sector has featured in several Ministry of Labour blitzes focused on precarious employment.

Originally posted on by Sara Mojtehedzadeh  on August 24, 2018