2274-99-ES Shi-An Wang, Applicant v. Lixi Ma and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 34001612
BEFORE: Caroline Rowan, Vice-Chair.
APPEARANCES: John Lee for the applicant; Hugo Von Schober for the responding party employer; Heidi Ann Lazar-Meyn for the Ministry.
DECISION OF THE BOARD; June 30, 2000
1This is an application filed by Shi-An Wang (the “employee”) under section 68 of the Employment Standards Act (the “ESA”) for a review of an employment standards officer’s refusal to issue an Order to Pay. The employee’s claim is for unpaid wages owing to her by her former employer, Lixi Ma (the “employer”). The employee filed her claim with the Ministry of Labour in March 1999 following the termination of her employment.
2At the outset of the hearing in this matter, the Ministry raised two preliminary issues. The first issue relates to the Board’s jurisdiction to entertain this application in the absence of a written order or written refusal to issue an Order to Pay made by the employment standards officer. The second preliminary matter raised is that the application cannot proceed in any event, since, according to the Ministry and the employer, the employee’s claim was settled by the parties at the employment standards officer’s fact finding meeting held in July 1999.
3In this regard, the Ministry’s representative notes that the employment standards officer conducted a fact finding meeting with the parties in or about July 1999 at which time it is alleged that the parties entered into a voluntary settlement of the employee’s claim. In this respect, the Ministry and the employer refer to a handwritten document, which was prepared by the employer’s counsel and was signed by the employee at that time. That document reads as follows:
ACKNOWLEDGEMENT AND RECEIPT
The undersigned hereby acknowledges receipt of $416.00 representing termination pay in full, further to the decision of the Ministry of Labour, this 13th day of July, 1999, paid by Lixi Ma.
Dated at Toronto, July 13, 1999.
“Shi An Wang” .
Shi An Wang .
The employee acknowledges that she signed that document but claims that it does not represent a voluntary settlement of her claim.
4The Ministry’s representative also explained that the employment standards officer never issued an Order to Pay and never provided a letter to the employee indicating a refusal to issue an Order to Pay, given the officer’s view that the claim was settled.
5The Ministry argues that no application for review may be brought by the employee at this time, since no Order to Pay has ever been issued and no written advice was ever provided to the employee of the employment standards officer’s refusal to issue an Order to Pay. According to the Ministry, no application for review may be brought of a refusal to issue an Order to Pay until written advice of such refusal is sent to the employee or until the officer is “deemed” under the ESA to have refused to issue an Order to Pay. The relevant provisions of the ESA read as follows:
- (1) If, after an employee files a complaint, an employment standards officer finds that an employer has paid the wages to which an employee is entitled or has found that the employee has no other entitlements or that there are no actions which the employer is to do or is to refrain from doing in order to be in compliance with this Act, the officer may refuse to issue an order to an employer and upon refusing to do so shall advise the employee of the refusal by prepaid letter addressed to the employee at his or her last known address.
(2) An employment standards officer shall be deemed to have refused to issue an order to the employer if a proceeding is not otherwise commenced within two years after the facts upon which the deemed refusal is based first come to the knowledge of the Director. The refusal shall be deemed to have occurred on the day before the two-year period expires.
(2.1) - (2.3) Repealed
(3) - (7) Repealed
- (1) A person who considers himself, herself or itself aggrieved by an order made under subsection 13.1 (14) or section 45, 48, 51, 56.2, 58.22, 58.23 or 65 or by the refusal of an employment standards officer to issue such an order may apply to the Board for a review of the order or refusal.
(3) An application for a review must be made,
(a) in the case of an application for a review of an order, within 45 days after the date of the order;
(b) in the case of an application for a review of a refusal to issue an order, within 45 days after the date of the letter advising of the refusal or the date on which the refusal was deemed to have occurred under subsection 67 (2).
(4) Subject to subsection (5), the Board may extend the time for applying for a review if it considers it appropriate to do so.
Pursuant to subsection 67(2) of the ESA, an officer is not deemed to have refused to issue an Order to Pay until two years have elapsed from the filing of the employee’s claim, which in this case was filed in March 1999. In the circumstances of the present case, the Ministry argues that no application may therefore be brought concerning the officer’s alleged refusal to issue an Order to Pay until sometime in March 2001 unless written advice of a refusal as contemplated under subsection 67(1) of the ESA is sent prior to that time.
6Having considered the representations of the parties, the Board agrees with the Ministry’s submission that it does not have jurisdiction to entertain this application made for review under section 68 of the ESA at this time. In the circumstances of the present case, there has been no Order to Pay issued as contemplated under subsection 68(1) of the ESA and also no refusal of an employment standards officer to issue an Order to Pay. The provisions of section 67 and 68 of the ESA contemplate that a refusal to issue an Order to Pay occurs where the officer advises “the employee of the refusal by prepaid letter addressed to the employee at his or her last known address.” Otherwise, the employment standards officer will be deemed to have refused to issue an Order to Pay “… if a proceeding is not otherwise commenced within two years after the facts upon which the deemed refusal is based first come to the knowledge of the Director.” (subsection 67(2) of the ESA) Under the terms of section 68 of the ESA, an application for review of an officer’s refusal to issue an order may be made “within 45 days after the date of the letter advising of the refusal or the date on which the refusal is deemed to have occurred under subsection 67(2).” (subsection 68(3)(b))
7In the circumstances of the present case, a deemed refusal would not occur (assuming that no Order to Pay is issued and no letter advising of the officer’s refusal is received) until sometime in March 2001, being two years after the employee’s claim was filed with the Ministry. In all of the circumstances, the Board finds that the employee’s application is premature as no Order to Pay was ever issued and there has to date been no refusal (or deemed refusal) of the employment standards officer to issue an Order to Pay within the meaning of the ESA. The Board further finds that its decision dated February 2, 2000 was in error as it was based on the understanding that an Order to Pay had been issued on July 13, 1999 (given the written representations made by the parties at that time). The Board therefore concludes that it does not have jurisdiction to entertain this application at this time.
8The Board, however, observes that little purpose would be served by requiring the employee to wait until the two year period contemplated under the statute has elapsed if the employment standards officer has, in fact, no intention of issuing an Order to Pay because of the alleged settlement of the employee’s claim. In this respect, the Board notes that subsection 67(1) of the ESA requires an officer to advise the employee of the refusal “…by prepaid letter addressed to the employee at his or her last known address” upon refusing to issue an order. Given that the employee disputes that a settlement was reached, the Board would expect that the Ministry will either review this matter further or, alternatively, will advise the employee of the officer’s refusal to issue an Order to Pay so that an application for review may be brought without further delay.
Disposition
9This application is dismissed without prejudice to the employee’s right to file a fresh application for review under the ESA at the appropriate time. In making this decision, the Board notes that it has made no determination as to whether or not a settlement has been reached.
“Caroline Rowan”
for the Board