Michael Morton v. Yorkview Plastics Limited, Wally Sinjakewitsch and Ministry of Labour
2211-00-ES Michael Morton, Applicant v. Yorkview Plastics Limited, Wally Sinjakewitsch and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 41008937
BEFORE: Harry Freedman, Vice‑Chair.
DECISION OF THE BOARD; November 1, 2000
This is an application for review under section 68 of the Employment Standards Act, R.S.O. 1990, c. E. 14, as amended (the "Act") for review of the refusal of Employment Standards Officer Wally Sinjakewitsch to issue an order to pay. The letter advising the applicant of Mr. Sinjakewitsch’s decision was dated June 8, 2000. The applicant filed this application dated October 23, 2000 with the Board on October 27, 2000. This application was filed more than three months beyond the time stipulated in section 68 (3) (b) of the Act for making a timely application for review of a refusal to issue an order.
Section 68 (4) of the Act permits the Board to extend the time for making an application for review if the Board considers it appropriate to do so. The applicant in his application specifically requests that the Board extend the time for making this application. The applicant asserts that he had not received the letter from the Officer until he contacted Mr. Sinjakewitsch on September 21, 2000 to find out about his claim for severance pay. Mr. Sinjakewitsch advised the applicant that his claim had been denied and that a letter dated June 8, 2000 had been sent to him advising him of the decision. The applicant asserts that he told Mr. Sinjakewitsch that he had not received that letter and as a result, Mr. Sinjakewitsch sent him a copy of it. The applicant alleges that he received a copy of the June 8, 2000 letter from Mr. Sinjakewitsch on October 3, 2000. The copy of that letter, which the applicant filed with his application had a notation from Mr. Sinjakewitsch indicating that the applicant had told Mr. Sinjakewitsch that he had misplaced the original letter. The applicant asserts that he never said that to Mr. Sinjakewitsch.
The applicant’s application appears to raise serious issues. The applicant claims termination and severance pay. He alleges that he had been employed for about 10 years and was dismissed apparently as a result of overstaying a leave of absence. The applicant claims that he fell ill just before he was to return to work from his leave and that upon his return to Canada some three months later was dismissed. The decision of the Employment Standards Officer indicated that the investigation of the applicant’s claim was completed and then stated:
The investigation did not support your allegations to the wages your claim indicated. We therefore, found no violation of the Employment Standards Act in this situation.
Those two sentences constituted the complete explanation the applicant received for rejection of his claim. It is therefore not clear whether Mr. Sinjakewitsch determined that the applicant had resigned or whether he had engaged in wilful misconduct or disobedience or wilful neglect of duty as the reason for not allowing the claim.
While there is some dispute between the applicant and Mr. Sinjakewitsch over when the applicant received the letter advising him of the decision refusing to issue an order, it is clear that the applicant did receive a copy of the letter sometime after September 22, 2000. I am satisfied that the applicant acted promptly in both applying for a review of the Officer’s decision and in seeking an extension of the time for making the application upon receiving the copy of the Officer’s letter after September 22. I am not prepared to find that the applicant did not receive the original letter as the Officer’s note indicates, nor do I need to resolve the factual dispute over what the applicant said to the Officer in their telephone discussion on September 21, 2000. If the applicant had in fact actually received the June 8, 2000 letter and misplaced it, then some further explanation might have been warranted. There is, however, no dispute that the applicant did contact the Officer in September to inquire about his claim and upon receipt of the copy of the letter, filed this application. Based on the nature of the applicant’s claim and in view of the facts not in dispute, I am satisfied that it is appropriate to extend the time for making this application.
The Board hereby extends the time for applying for review of Employment Standards Officer Wally Sinjakewitsch’s decision refusing to issue an order to pay dated June 8, 2000 to October 27, 2000, the date the application was made. Therefore this application for review is now timely and is referred to the Registrar.
This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board