McCleary Animal Hospital v. Lorraine Cole and Ministry of Labour
Before: Pamela A. Chapman, Vice-Chair.
Appearances: No one appearing for the applicant; no one appearing for the claimant; Laurie Eisenberg for the Ministry of Labour.
DECISION OF THE BOARD
1This is an application pursuant to section 68 of the Employment Standards Act, R.S.O. 1990, c. E-14 as amended (“the ESA”) for review of an Order to Pay in respect of a claim for termination pay.
2At the hearing of this matter on February 1, 2000 the Board accepted into evidence certain documents relating to the appeal, and began to hear the oral evidence of the parties.
3At the hearing scheduled for June 5, 2000 no one appeared on behalf of the parties other than counsel for the Ministry of Labour. This hearing date was set after consultation with the parties, and with the specific agreement of the applicant. It is also clear from the correspondence in the file that at least the applicant was aware of the hearing date and location. The Board waited the customary 30 minutes, and when no one appeared proceeded to dispose of the application for review.
4The applicant has appealed Order to Pay No. 47677, issued against McCleary Animal Hospital for the amount of $936.00 as termination pay in lieu of notice. At the hearing on February 1, 2000, the Board heard the evidence of Lorraine Cole (“the claimant”), who asserted that she had been terminated from her employment without notice. Certain documents were also admitted into evidence.
5The employer asserts in its application and in various correspondence filed with the Board that the claimant either quit or took a leave of absence (which is what was reported on the Record of Employment issued by the employer). Some of the allegations made by the employer also appear to relate to a claim of wilful misconduct.
6By decision dated February 14, 2000 the employer was directed to file certain particulars of its position, and it did subsequently file a letter and a number of statements from other employees. In its letter, the employer asserts that the claimant quit her employment.
7As the applicant, and as the party seeking to establish that termination pay in lieu of notice is not due to the claimant, McCleary Animal Hospital clearly has the onus to make out a case for a review of the order of the Employment Standards Officer. The documents filed by the applicant, in the absence of any oral testimony to support them, do not establish that the claimant quit. There is no dispute that she no longer works for the applicant, as is confirmed by the Record of Employment which was entered into evidence. And the claimant denied in her testimony that she quit, and asserted that the employer refused to allow her to return to work after an altercation at the workplace.
8In these circumstances, I must conclude that the claimant’s employment was terminated without notice and that she is therefore entitled to termination pay pursuant to section 57 of the Act.
DISPOSITION
9The Application for Review is hereby dismissed. The Board therefore requests that the Director of the Employment Standards Branch distribute the monies held in trust, along with any accrued interest, to the claimant.
“Pamela A. Chapman”
for the Board