3123-98-ES Canadian Linen and Uniform Service Company Ltd., Applicant v. Dale Cowell et al. and Ministry of Labour, Responding Parties.
3389-98-ES Richard Appleton, Applicant v. Canadian Linen Co. Ltd. and Ministry of Labour, Responding Parties.
3402-98-ES Brian Greene, Applicant v. Canadian Linen Co. Ltd. and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 32004267
BEFORE: Mary Ellen Cummings, Alternate Chair.
DECISION OF THE BOARD; March 31, 2000
These are two employee appeals and an employer appeal with respect to an Order to Pay issued on October 30, 1998 in the amount of $612,501.46, and an administrative fee of $61,250.15. While it is an over simplification of the issues, essentially, the Employment Standards Officer found that Canadian Linen and Uniform Service Company Ltd. (“Canadian Linen”) did not keep accurate records of the hours its drivers worked. Moreover, the Officer concluded that Canadian Linen failed to compensate drivers for overtime worked; failed to give an eating period and failed to pay proper wages for hours worked on public holidays. The Officer made an assessment with respect to 109 employees or former employees, in varying amounts.
Canadian Linen has sought review of the Order to Pay on a number of basis. Two employees have also sought review, submitting that they should have been awarded more.
A May 20, 1999 decision of the Board determined that these matters should be heard together. The Board has further concluded that the number of individual claims involved, and the potential for some preliminary issues, calls for a measure of “case management” or pre-hearing intervention. It is also hoped that after some “sorting”, the Board’s efforts at mediation through Labour Relations Officer Bob Wright can continue.
In a decision dated February 10, 2000, the Board made orders intended to facilitate the litigation of this matter and, further the possibilities of settlement. Specifically the Board directed the workplace bargaining agent, the Canadian Linen Drivers and Industrial Workers Union, Teamsters Local 847 (the union) to advise the Board and the other parties if it seeks to participate in its capacity as bargaining agent, and outline its position with respect to the issues and provide the list of individual claimants it represents. The union was directed to provide this information by March 15, 2000. To date the Board has received nothing from the union.
The Ministry of Labour, Employment Standards Branch was directed to advise the Board if it was unwilling to provide the Board and the parties with the basis for the calculation of the wages ordered, and if it was so willing to provide the information by March 30, 2000.
Counsel for the Ministry wrote to the Board on March 28, 2000, copying the other parties. The Ministry does not object to producing the material, but given its volume, requests an extension of 30 days. The Board amends its earlier direction. The Ministry shall provide the information by May 1, 2000.
All parties were directed to give notice of any preliminary issues to all parties by March 15, 2000. The employer appears to have complied with that direction. By letter dated March 15, 2000, counsel wrote:
a) that the Board lacks jurisdiction to proceed in this matter and that the Ministry of Labour be required to provide any necessary information in this regard;
and in the alternative
b) that the Order is untimely and should be dismissed and that the Ministry of Labour be required to provide any necessary information in this regard; and
c) that the Order be dismissed as a result of the failure of the Employment Standards Officers to act judicially, and in particular, the failure to adhere to the fundamental rules of natural justice
- The Employer may raise other preliminary matters upon receipt of any information which may be provided as of March 15 from the Union or the Ministry of Labour or both as per the Board’s decision dated February 10, 2000
with respect, the Board does not understand 2a) and 2b). It would be useful, and I so direct, the employer to set out the facts on which it relies in support of its preliminary arguments with respect to point 2c). The Board notes that numerous decisions of adjudicators/referees have held that any frailties in the process conducted by the Officer, including a failure to meet the requirements of natural justice are cured by the opportunity to have a de novo hearing before an adjudicator/referee or now, the Board. See for example Re Prattas (July 18, 1996, ESC 96-160) and Re Beth-Mar Realty Investments Ltd. (December 21, 1995, ESC 95-243). However, in Re Sanwa McCarthy Securities Ltd. (February 28, 1994, ESC 94-50) the adjudicator acknowledged that a “second stage” hearing may not be able to cure every irregularity in a “first stage” inquiry, and if it could, one might want to make some procedural changes (such as to who bears the proof ) in the “second stage” hearing to truly cure any procedural defect.
But is only in the most serious of natural justice breaches that the Board would be prepared to go down that road. And, with respect, at this point Canadian Linen Services has made only bold allegations, with no material facts pleaded.
Counsel for Canadian Linen Service is directed to set out the material facts on which it relies, and to outline its argument in more detail, with respect to all the preliminary issues it has enumerated.
Canadian Linen Service is directed to deliver to the other parties, and file with the Board, this material by no later than May 1, 2000.
“Mary Ellen Cummings”
for the Board