3192-99-ES Sherry Minnick, Applicant v. Exeter Produce and Storage and Ministry of Labour, Responding Parties.
BEFORE: M. A. Nairn, Vice-Chair.
DECISION OF THE BOARD; March 1, 2000
1. This is an application for review brought by an employee pursuant to section 67 of the Employment Standards Act (the “ESA”). The application form was sent by regular mail and received on January 28, 2000. Thus the application date is January 28, 2000. The application is accompanied by a letter, which, although it complains of the process involved in handling ESA claims, does not provide any information as to the substance of the review being sought.
2. It is not clear from the material, but it may be that the applicant misunderstands the process. An Employment Standards Officer makes an initial determination as to whether an employee is entitled to some reimbursement under the ESA. That Officer is an employee of the Ministry of Labour. That Officer has the authority to make determinations under the ESA. An application for review of any such decision is made to the Ontario Labour Relations Board (the “OLRB” or the “Board”). That tribunal is independent from the Ministry and acts as an appellate agency with respect to ESA determinations. Any application for review to the OLRB must include all the relevant material on which an applicant relies and, pursuant to section 68 of the ESA, must be filed within 45 days of the date of any Order of the Employment Standards Officer or the date of the refusal to make a Order. That time limit is set by the statute and cannot be extended unless the Board finds it appropriate to do so. There is no fee payable by an employee seeking a review.
3. On the face of the application there was no indication as to when any refusal to make an Order had occurred. By letter dated February 1, 2000 and copied to all parties, the Registrar of the OLRB requested that the Ministry of Labour provide a copy of the Officer’s letter refusing to make an Order, the name and address of the employer, a copy of the Officer’s narrative report, and any work sheets of the Officer. That material (excluding work sheets) was received by the OLRB on February 8, 2000. The letter refusing to issue an Order is dated November 22, 1999. Based on this letter the deadline for a timely application for review was January 6, 2000. As noted this application was not received until January 28, 2000.
4. By letter dated February 14, 2000 the Registrar of the OLRB wrote to the applicant advising that it appeared that her application for review was untimely and further, that the ESA provides that the OLRB may extend the time for filing if it considers it appropriate to do so. That letter confirms that the payment of money into trust applies to employers and directors, not employees. The letter then states:
If you believe that your application has been filed in a timely manner, or if you wish to seek an extension of time for applying for a review, you must advise the Board in writing within ten (10) days of the date of this letter, setting out, in detail, your reasons why the appeal should be considered timely and/or why an extension of time for filing ought to be granted.
5. No response to that letter has been received. In reviewing whether or not to extend the time limits therefore I have only the material on file. The applicant complains that she was not aware of the form to complete but that she did receive a copy of the application for review form at some point. The letter advising the applicant that the Officer is refusing to issue an Order states at the bottom that an employee may apply for review if dissatisfied with the decision of the Officer. It states:
An application for review must be made within 45 days of the date of the order or the date of the letter informing the employee of the decision. The Ontario Labour Relations Board may extend the time for applying for a review if it considers it appropriate to do so.
6. The application for review form provides that the application is to be filed with the Registrar of the OLRB and includes the address. It reiterates the 45-day time limit and requires an applicant to complete the form setting out the facts and reasons supporting their request, including any Order or the letter refusing to issue an Order. There is no requirement that an employee pay any fee in order to file the application. The requirements for filing an application for review appear to have been available to the applicant.
7. The applicant states in her application that “if I did not like the outcome I could “appeal” it and I did….I did so in writing and ‘rudely’ enough have not heard anything since”. If this is a reference to an earlier letter seeking review of the Officer’s decision the Board has no record of it and the applicant, pursuant to the more recent request, has not supplied it. Absent such material there is no basis on which to justify an extension to the time for filing the application.
8. In the circumstances therefore, this application is untimely. There are no grounds rendering it appropriate to extend the time for filing. The application is therefore dismissed.
“M. A. Nairn”
for the Board