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A Kelowna contractor who exploited foreign workers and was ordered to pay $90,000 in unpaid wages to several people he hired through the Temporary Foreign Workers Program has lost an appeal to have the ruling overturned.

According to a Nov. 23 B.C. Employment Standards Tribunal decision that was recently published, Kelowna firm Everlasting Stucco and Stone argued the Tribunal made several errors and failed to "observe the principles of natural justice" when in April it fined the company $2,500 for reducing the workers' wages by $10 an hour and failed to pay vacation and statutory holiday pay, as well as overtime. 

Along with the fine, the Tribunal ordered Everlasting Stucco to pay Rajesh Kumar, Fateh Singh and Amarjeet Singh Saini $90,648 in unpaid wages.

Everlasting Stucco employed the three workers in the spring of 2018 under the Temporary Foreign Workers Program on a two-year contract, the decision said.

However, after about a month into the job, the company's owner, Harkanwaldeep Singh, changed their contracts. The new contracts had significantly different terms including a $10 per hour wage reduction, no overtime and no statutory holiday pay. According to Singh, the three workers "voluntarily agreed" to the changes.

The three workers however say they never agreed with the changes but didn't complain for fear of jeopardizing their immigration status.

For reasons not explained in the decision, the three workers' employment was terminated in June 2019.

Everlasting Stucco's reasoning for the reduced wages and the changes in the contract was that the three workers had originally been hired by Harkanwaldeep, the sole proprietor of Everlasting Stucco, but had been dismissed and then rehired by the corporate entity Everlasting Stucco.

In the appeal, Harkanwaldeep argues the Tribunal overlooked this aspect and failed to address the legal distinction between the two.

However, the tribunal says while the company may have transitioned from a sole proprietorship to a corporate entity, that did not alter the terms of employment for the three workers.

The tribunal goes on to say the workers were employed, on the terms set out in the Labour Market Impact Assessment and the Temporary Foreign Workers Program and a change in the company's structure makes no difference to that contract.

The company also appealed the original ruling on several other grounds saying the tribunal had failed to observe "natural justice" and made errors in understanding the law.

However, the tribunal dismissed all the contractor's arguments stating there is "very clear evidence" as to why the tribunal found the company liable in the first place.

"There is simply no factual or legal basis for this ground of appeal, it has no merit and it is dismissed," the decision reads.

Ultimately the tribunal ordered the company to pay the workers $90,648 plus interest as well as the $2,500 fine.

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