3432-98-ES Andy Skrypniak and 891005 Ontario Inc., Applicant v. Ken Laslo, Richard Martin and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 50004528
BEFORE: Anthony Brown, Vice-Chair.
DECISION OF THE BOARD; May 24, 2000
1This is an application for review of an order to pay issued by an Employment Standards Officer pursuant to the Employment Standards Act (“the Act”).
2A hearing was held February 2, 2000. The applicant, Andy Skrypniak, and the Ministry of Labour (“the Ministry”) were present but the claimants were not, although duly notified of the hearing by the Registrar.
3Mr. Skrypniak asserts that the actual employer of the two claimants, Kevin Laslo and Richard Martin was 891005 Ontario Inc. This company operated two gas bars for Suny’s Gas Bar, one of which was located at 198 Barton St., Hamilton, where the claimants worked. On June 4, 1994, representatives of Suny’s Gas unilaterally ended Suny’s relationship with 891005 Ontario Inc. and took possession of the gas bar on Barton Street. 891005 Ontario Inc was told to have its belongings out of the premises by June 16, 1994.
4The parties advised the Board that they had agreed that the Order to Pay should have been made against 891005 Ontario Inc. and not against Mr. Skrypniak personally. Mr. Skrypniak spoke as a representative of the company. The company is therefore added as an applicant in these proceedings with consent of the parties present at the hearing. The applicant company agrees that it owes wages to Mr. Laslo in the amount of $209.38 and to Mr. Martin in the amount of $195.54. However it argues that it is not required to pay termination pay to the claimants because its contract of employment with each claimant was frustrated by the action of Suny’s in taking possession of the gas bar and requiring the company to leave. Thus, the company argues that clause 57(10)(d) of the Act applies to the facts.
5Mr. Skrypniak also submits that the administration fee paid in trust to the Director of Employment Standards should be returned to him. In his submission, had he been made aware of the claim against him at the outset, the necessity for an Order to Pay may have been avoided altogether.
Decision
6The Board finds that the Order to Pay should not have been made against Mr. Skrypniak personally. The delay from 1994 to the date of application in 1998 resulted from the fact that Mr. Skrypniak was unaware of the claim having been made under the Act until a collection agency came calling in 1998. The company was the employer of Mr. Laslo and Mr. Martin.
7The Board finds that the contract of employment between the company and the claimants was frustrated by the actions of Suny’s which completely prevented the company from carrying on business at the location where the claimants were employed. There is no suggestion in the information before the Board that the company could have employed the claimants at any other location. Accordingly, neither Mr. Skrypniak nor the company is obligated to pay termination pay to the claimants.
8On behalf of the company, Mr. Skrypniak agrees that the company owes wages to Mr. Laslo in the amount of $209.38 and to Mr. Martin in the amount of $195.54, and the Board so finds.
9The Employment Standards Officer made an order against Mr. Skrypniak based on the information at his disposal. He evidently thought that the claimants were employed by a sole proprietorship, and not a company. Mr. Skrypniak asserts that he was unaware of the claim. In the Board’s view, Mr. Skrypniak has been substantially successful in this application for review and these are appropriate circumstances in which to order that the entire administration fee be returned to him.
Disposition:
10The order of the Employment Standards Officer is amended.
11On consent, 891005 Ontario Inc. is added as an applicant.
12The Director of Employment Standards is directed to disburse money held in trust in this matter as follows:
Kevin Laslo $209.38
Richard Martin $195.54
Andy Skrypniak (in his own name) $1284.76
(includes administration fee of $168.96)
Accrued interest shall be paid out to the parties in proportion to the amounts paid.
“Anthony Brown”
for the Board