Ontario Labour Relations Board
Parties
3018-99-ES Chun Chun Chen, Applicant v. Cinram Limited, and Ministry of Labour, Responding Parties.
BEFORE: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; February 28, 2000
Decision
1This is an application for a review of a refusal by an Employment Standards Officer to issue an order, made pursuant to section 68 of the Employment Standards Act, R.S.O. 1990, ch. E-14, as amended (the "Act"). In response to the Board's direction of January 25, 2000 and February 2, 2000, the applicant has filed further voluminous and detailed submissions as to the nature of his complaint.
2This application is dismissed. It is clear from a reading of the applicant's submissions that the Board lacks the jurisdiction to deal with this application. Subsection 68(12) of the Act provides as follows:
- (12) The chair of the Board may make rules to expedite decisions about the Board’s jurisdiction and such rules,
(a) may provide that the Board is not required to hold a hearing; and
(b) may limit the extent to which the Board is required to give full opportunity to the parties to present their evidence and to make their submissions.
3Rule 46 provides:
- Where the Board considers that an application does not make out a case for the orders or remedies requested, even if all of the facts stated in the application are assumed to be true, the Board may dismiss the application without a hearing or consultation. In its decision, the Board will set out its reasons.
4While the subsection limits the apparent wide scope of the rule to matters of a jurisdictional nature only, the rule is clearly one under which the Board has the statutory authority to act in an appropriate case. This is such a case.
5The applicant goes to great lengths to distance himself from the previous application under section 68 of the Act (Board File 3155-98-ES). He argues that the previous application was restricted in its scope to termination pay, and this complaint deals only with seniority and recall rights. Even accepting the applicant's case can be so described on a factual and legal basis (a proposition which is not immediately apparent to this Vice Chair), the Board has no jurisdiction to deal with it. The applicant bases his claim on subsections 57 (19) and 57 (20) which provide:
- (19) An employee who is entitled to termination pay under subsection (17) and who has a right to be recalled for employment under the terms and conditions of employment may elect to be paid the termination pay forthwith or may elect to retain the right to be recalled.
(20) Where an employee elects under subsection (19) to be paid the termination pay forthwith, the employee shall be deemed to have abandoned the right to be recalled.
6The applicant points to a section of the employer's Human Resources Policy as the source of his seniority and recall rights. That may well be. However, the Act does not provide for a mechanism for enforcing any such rights. It merely gives an employee to whom subsection 57(17) would otherwise apply the chance to chose between his statutory right to termination pay and his recall rights, if any, which may be an independent term and condition of his/her employment. Those rights of recall, if they exist, must be enforced in some other forum. The Board has no jurisdiction to enforce them.
7This application is dismissed.
"David A. McKee"
for the Board