Ontario Labour Relations Board
0248-00-ES UFCW, Local 1000A, Applicant v. Cara Operations Limited; Can Can Food and Vending Services Ltd. and Ministry of Labour, Responding Parties.
Employment Practices Branch File Nos. 40010944 and 40010943
BEFORE: Stephen Raymond, Vice-Chair.
APPEARANCES: Sean FitzPatrick and Kevin Benn for the applicant; Brian O’Byrne, Jennifer Davey, Frank Charron, Craig Richardson and Jim Whyte for Cara Operations Limited; Hugh Dyer and Mike Byerley for Can Can Food and Vending Services Ltd.; Alicia Gordon-Fagan for the Ministry of Labour.
DECISION OF THE BOARD; December 6, 2000
1The applicant appeals on behalf of a group of its former members a decision of an Employment Standards Officer not to award termination pay to be paid by the respondent employers.
2A hearing was held in this matter on December 1, 2000.
3It was decided that the Board would conduct the hearing in two phases. The first phase would deal with all issues pertaining to the entitlement of the persons represented by the applicant, as a group, to require the payment of termination pay by the responding employers pursuant to the Employment Standards Act as amended (the “Act”). The second phase of the hearing, which would only occur if there was a finding of entitlement pursuant to the Act, would be an examination of the individual circumstances of each person and a determination of what entitlement, if any, each person had.
4The Board made some orders at the hearing as to the conduct of the remainder of the phase one of the hearing that are reproduced here for the reference of all of the parties.
5The responding party, Cara Operations Limited (“Cara”) has objected to the jurisdiction of the Board to hear this matter on the basis that the work being performed by Cara is in relation to a federal undertaking. This will be referred to as the constitutional question. It is noted by the Board that no Notice of Constitutional Question has been filed with the Board and a Notice is required.
6Cara was directed to advise the applicant, the other parties and the Board on or before December 15, 2000 as to the evidence, if any, that it needs to call to argue the constitutional question.
7The applicant was directed to advise the other parties and the Board on or before January 5, 2001 as to whether it can agree to the evidence set out by Cara. If there is no need to hear any evidence, the Board will set out timelines for the parties to make submissions on the constitutional question. If evidence is necessary, it will be heard at the next day of hearing. Given the need for a Notice of Constitutional Question, the Board will amend those timelines with the consent of all parties or may do so at the request of one of the parties or any intervening party.
8The parties were also ordered to submit pleadings and/or further pleadings and any documents upon which they intend to rely with each other and the Board in accordance with the schedule set out below. The pleadings and the documents only relate to issues to be addressed in phase one of the hearing.
9The applicant is to comply with the order in paragraph 8 above on or before January 19, 2001. All responding parties are to comply by February 9, 2001. The applicant is to provide any further information by March 2, 2001.
10The hearing will continue on May 2, 3 and 15, 2001, at 9:30 a.m. at the Board’s offices located at 505 University Avenue, 2nd Floor, Toronto, Ontario.
“Stephen Raymond”
for the Board