Ontario Labour Relations Board
Parties
2806-99-ES Estimations Trimac Appraisals Inc., Applicant v. Donna Cholette, Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 23000817
BEFORE: Pamela A. Chapman, Vice-Chair.
APPEARANCES: George W. MacDonald for the applicant; Donna Cholette on her own behalf; Grainne McGrath for the Ministry of Labour.
DECISION OF THE BOARD; October 31, 2000
Decision
1This is an application for review of the decision of an Employment Standards Officer, pursuant to section 68 of the Employment Standards Act as amended by the Economic Development and Workplace Democracy Act, 1998, S.O. 1998, c.8 (the “ESA”).
2The responding party (“the employee”) filed a claim with the Ministry of Labour on, seeking the payment of termination pay by the applicant (“the employer” or “Estimations Trimac”). The officer appointed to investigate the claim concluded, having regard to the information provided by the applicant and by the employer, that the employee was owed eight weeks’ pay in lieu of written notice. She therefore issued Order to Pay No. 49729, dated October 27, 1999, requiring the employer to pay to the employee the amount of $3,086.39, plus statutory administration costs. The employer asks the Board to rescind the Order to Pay.
3At the hearing held in this matter on the applicant and employer had an opportunity to give oral testimony and to introduce into evidence various documents, as well as to make submissions concerning the application for review. Having regard to the evidence and to those submissions, the following is my decision.
The Facts
4The employee worked as office coordinator for the employer for the period August 9, 1990 to July 30, 1999, earning $741.92 every two weeks.
5Beginning early in 1999 there was a drastic reduction in the amount of business carried on at the Cornwall branch of the employer’s operations, where Cholette was employed, resulting in a closure of that office on July 30, 1999. It was not disputed that the employee, as office coordinator, was aware that the business was in decline, and she learned in May 1999 that the office would be closed in the near future. Indeed, she was involved in the employer’s planning for the closure, including sorting and destroying records, trying to sell assets, and eventually, on July 6, 1999, typing a letter to the landlord indicating the premises would be vacated on July 30, 1999.
6However, it was also undisputed that at no time during this period was the employee given written notice of her own termination.
The Decision
7Section 57(1)(h) provides as follows:
- (1) No employer shall terminate the employment of an employee who has been employed for three months or more unless the employer gives,
(h) eight weeks notice in writing to the employee if his or her period of employment is eight years or more,
and such notice has expired.
8The section is absolutely clear in requiring notice of termination to be in writing. As the employer acknowledged that no such notice was provided, I ruled orally at the hearing that it was required to pay termination pay pursuant to section 57, in the amount of eight weeks’ pay having regard to the employee’s length of service. While the employee was obviously aware that the employer was winding up its business, it was incumbent upon the employer to be absolutely clear in advising her of the impact of the closure upon her, including the specific date on which her termination would be effective, which is the clear purpose of the requirement that the notice be in writing. Failing provision of written notice at least eight weeks in advance of the termination, the employer is obliged to pay termination pay in lieu of written notice in the amount set out in section 57(14) of the ESA, which in the present case is eight weeks’ salary.
DISPOSITION
9The Application for Review is dismissed and the Order to Pay is upheld. I hereby order:
(i) that the wages paid to the “Director in trust” in relation to this matter be disbursed as follows:
To be paid to the Employer $ 0.00
To be paid to the Employee $ 3,086.39
that the administrative fee as $ 308.64
set out in the Order to Pay be
retained by the Government of
Ontario Consolidated Revenue
Fund
Total amount held by the Director: $ 3,395.03
(ii) interest earned on the monies held in trust in this matter is to be paid to the above parties in proportion to the amounts paid out.
“Pamela A. Chapman”
for the Board