1634-98-ES Cineplex Odeon Corporation, Applicant v. Ministry of Labour, Responding Party.
BEFORE: Brian McLean, Vice-Chair.
DECISION OF THE BOARD; March 13, 2000
1The Ministry of Labour has requested that the Board reconsider its decision dated December 21, 1999. The request for reconsideration is made on the basis that it is alleged the Board erred when it ordered the entire amount of the Order to Pay, including the 10% administration fee, returned to the employer, other than those amounts which the employer acknowledged it was responsible for.
2The Ministry argues that the 10% administration fee is a "mandatory amount" which an employer must pay on the gross amount of the Order to Pay.
3I disagree.
4The employer applied for a review of the Order to Pay under section 68 of the Employment Standards Act. Section 68(6) of the Act states:
- (6) On a review under this section, the referee may substitute his or her findings or opinions for those of the employment standards officer who issued the order being reviewed and may amend, rescind or affirm the order.
The Employment Standards Officer's authority to make an order to pay is outlined in section 65(1.2) of the Act which states:
- (1.2) The employment standards officer may order the employer,
(a) to pay the wages owing to the employee to the Director in trust; and
(b) to pay an amount equal to the greater of $100 or 10 per cent of the wages to the Director for administrative costs.
5In reviewing an order to pay under section 68 of the Act, section 68(6) gives the Board the authority to "amend, rescind or affirm the order". Clearly, the administration costs form part of that order.
6The Ministry's argument can only succeed, therefore, if an Officer is required to order that administration costs be paid on any order to pay made against an employer. I find that administration costs are not mandatory. In my view, the words "may order the employer" give the Officer discretion on whether administration costs should be paid as part of an order to pay.
7I am satisfied that these are appropriate circumstances to exercise my discretion to rescind the administration costs portion of the Order to Pay. As it was described in the Board's decision dated December 21, 1999, this was an Order to Pay that was improperly made. Had the Ministry's Officer given the employer timely notice of the names of the employees who were part of the complaint and who were willing to proceed with the complaint as named complainants, I believe it is likely that the employer would have simply paid the employees in question. I draw this conclusion from the fact that the employer did pay the employees immediately after learning of the names of the employees. Quite simply, but for the Ministry's actions, the appeal and thus the payment of administration costs, would not have occurred.
Disposition
8For all of the foregoing reasons, I confirm the following orders to pay:
a) to Anne Harrison $193.71 ($206.18 less C.P.P. of $7.21 and E.I. of $5.26; to Kelly McLeod $694.26 ($879.09 less $131.65 income tax, $30.76 C.P.P. and $22.42 E.I.; to Gail Inglis $527.95 ($647.41 less $22.65 and $16.51); and
b) to be paid to the employer $3,167.78.
"Brian McLean"
for the Board