1637-99-ES Husnu Hurmuz Miho, Applicant v. Knoll North America Corp. and Ministry of Labour, Responding Parties.
BEFORE: Mary Ellen Cummings, Alternate Chair.
DECISION OF THE BOARD; February 2, 2000
By letter dated January 26, 2000, the applicant’s legal representative has asked me to reconsider my September 16, 1999 decision dismissing his application.
The applicant was terminated from his employment and made a claim to the Employment Standards Branch for termination and severance pay.
In a letter dated August 10, 1999, an officer concluded that the applicant was guilty of willful misconduct and so, not entitled to termination and severance pay. It is this decision which the applicant appealed to the Board. But with his letter of appeal he included a copy of a Statement of Claim issued in the Ontario Court (General Division) naming his former employer as a defendant. The claim alleges wrongful dismissal.
Section 64.4 of the Employment Standards Act permits an employee to bring either a claim under the Act, or a civil action for wrongful dismissal, but not both. Without seeking further submissions from the parties, I dismissed the applicant’s appeal on the basis that he had brought a civil action, and could not maintain both.
In the letter seeking reconsideration, the applicant’s legal representative wrote:
…It would appear that the civil proceeding which has now been dismissed could not have been started by reason of the fact that Mr. Miho applied for relief before an officer under the Employment Standards Act for an order to pay.
The letter did not include a copy of the dismissal of the proceeding but instead a letter, presumably from counsel for the employer, asking the applicant’s (presumably) counsel in the wrongful dismissal action to consent to the dismissal of the civil proceedings. The applicant’s legal representative wrote that the applicant is now in an untenable position because, essentially, the decision-makers in each forum where he could bring a claim have dismissed the claim precisely because he has a claim in the other forum.
If the applicant can convince me that the civil action was dismissed because he had brought a claim under the Employment Standards Act, I may be willing to reconsider my earlier decision, not withstanding the passage of time. However, the documents provided to this point are not adequate; I would like to see the documents which substantiate that the wrongful dismissal civil action was dismissed, and on what basis.
The applicant is directed to deliver those documents, and any other submissions he wishes to make, to the other parties, and to file them with the Board, no later than Friday, February 18, 2000. The other parties may deliver any response to each other and the applicant, and file them with the Board, no later than March 3, 2000.
“Mary Ellen Cummings”
for the Board