[1999] OLRB REP. NOVEMBER/DECEMBER 980
1634-98-ES Cineplex Odeon Corporation, Applicant v. Ministry of Labour, Responding Party
BEFORE: Brian McLean, Vice-Chair.
APPEARANCES: Joanne Schaefer for the applicant; Alicia Gordon-Fagan for the responding party.
DECISION OF THE BOARD; December 21, 1999
1This is an appeal by Cineplex Odeon Corporation ("Cineplex") of an Order to Pay issued by an Employment Standards Officer on July 2, 1998.
2The Order to Pay was issued with respect to complainants who wished to remain anonyÂmous. Therefore, the Order to Pay did not disclose the names of the employees who the Order was made in respect of.
3Cineplex appeals the Order to Pay on two grounds. It asserts that the Order was improperly made because Cineplex did not know the identity of the complainants and therefore could not properly defend itself on the facts as it understands them. Secondly, it alleges that the Order was improperly made because the employees at issue were not entitled to the wages ordered. It bases its argument on the facts as it best understands them, not knowing the identity of the employees at issue.
4By decisions dated April 26, 1998 and October 8, 1999 the Board (differently constituted) held that the employer was entitled to know the case it had to meet and accordingly, any employee who wished to advance their claim was required to provide their name to the employer prior to the scheduled date of hearing.
5Three employees decided to provide their names and assert their claim. The employer advised the Board and confirmed at the hearing of this matter, that they were prepared to withdraw their appeal of the Order to Pay with respect to those three employees. However, Cineplex also noted that since they were unaware of the names of the employees when they appealed, the monies that had been paid into trust were gross amounts, without the required income taxes withheld. Accordingly, and based on the information provided to me, I hereby amend the Order to Pay and make the following orders to pay:
a) to Anne Harrison $193.71 ($206.18 less C.P.P. of $7.21 and El. of $5.26); to Kelly McLeod $694.26 ($879.09 less $131.65 income tax, $30.76 CEP. and $22.42 El.); to Gail Inglis $527.95 ($647.41 less $22.65 and $16.51); and
b) to be paid to the employer $3,167.78.
6Before leaving this matter, I am compelled to comment on the course of action taken by the Ministry in this matter prior to hearing, which in my view was inappropriate.
7I agree that is certainly at least arguable under the Act and probably desirable on policy grounds that employees be permitted to make anonymous complaints to the Ministry about alleged breaches of the Act. Such complaints may be investigated in their own right or lead to an audit which may suggest (or not suggest) that the Act has been breached.
8However, it appears wholly inconsistent with the scheme of the Act that an Employment Standards Officer issues an Order to Pay without at least first advising the employer of the name(s) of the claimant(s). The scheme of the Act contemplates that the Officer investigate a complaint and then, upon completing the investigation, either make an Order to Pay or decline to make such an order. It is impossible for an Officer to receive the employer's side of the story and thereby conduct a genuine investigation unless the employer knows the identity of the complainant.
9It is also difficult to imagine how other aspects of the Act can work in the absence of the name of the complainant. For example, in the absence of the identity of the employees who are said to be owed money under the Act, it is impossible for the employer to raise sections 64.3 and 64.4 (which prevents duplicate civil actions), and it is virtually impossible for the Officer to arrange with the employer to pay wages owing under section 65(1.2).
10I appreciate that nothing in the statue specifically requires that the Order to Pay identify the complaint. However, there is also nothing which specifically permits the complainant to remain anonymous as in section 3 2(4) of the Pay Equity Act, which reads:
- (4) Idem.- Where an employee or group of employees advises the Hearings Tribunal or the Pay Equity Office in writing that the employee or group of employees wishes to remain anonymous, the agent of the employee or group of employees shall be the party to the proceeding before the Hearings Tribunal or review officer and not the employee or group of employees.
11More importantly, it is almost impossible for the employer to defend itself unless it has the facts surrounding the application, and to know the facts it must know the name(s) of the applicant(s). In short, it is my view that the way the Ministry proceeded in this case violated the employer's natural justice rights.
12It is understandable that employees may be concerned that their complaint may lead to reprisals by the employer. However, such reprisals are prohibited by section 76 of the Act which states:
76.( 1) No employer shall,
(a) dismiss or threaten to dismiss an employee;
(b) discipline or suspend an employee;
(c) impose any penalty upon an employee; or
(d) intimidate or coerce an employee,
because the employee,
(e) has sought the enforcement of this Act or the regulations;
(f) has sought to enforce his or her rights under section 50.1;
(f. 1) has exercised a right to refuse work under section 50.2;
(g) has given information to an employment standards officer;
(h) has participated in or is about to participate in a proceeding or hearing under this Act; or
(i) testifies or is required to testify in a proceeding or hearing under this Act.
(2) Where an employer is convicted of an offence under subsection (1), the provincial judge making the conviction shall, in addition to the penalty, order what action the employer shall take or what the employer shall refrain from doing and such order may include the reinstatement in employment of the employee with or without compensation or compensation in lieu of reinstatement for loss of wages and other benefits to be assessed against the employer.
(3) An employer who fails to comply with an order made under subsection (2) is guilty of an offence and on conviction is liable to a fine not exceeding $2,000 for each day during which the failure continues.
13Orders to Pay in respect of anonymous complainants not only do a disservice to employers, but also to employees. Employees not only run the risk that the employer's appeal will be allowed on the basis that the employer does not know the case it has to meet, employees also lose the chance to obtain a quick resolution to their complaint as anonymous complaints virtually ensure that an employer will appeal. In this regard I note that in this case the employer, once being notified of the names of the complainants, immediately agreed to pay. However, those payments are going to occur 1-1/2 years after the original Order to Pay, and 2-1/2 years after the complainants filed their complaints.
14I appreciate that I did not receive the Ministry's position on this matter and that my comments are obiter dicta; however, it is my view that the Ministry ought to reconsider how it proceeds where complainants wish to remain anonymous.