Simon Metal Fabricators v. Steven Hurndell and Ministry of Labour
File No.: 2781-99-ES Date: January 21, 2000 Before: Gail Misra, Vice-Chair
DECISION OF THE BOARD
1This is an employer request for review of Order to Pay No. 54404 that issued on October 7, 1999. The application is made pursuant to section 68 of the Employment Standards Act (the "Act").
2The application was received at the Board on December 9, 1999. Section 68(3) of the Act requires applications for review to be filed within 45 days after the date of the Order issuing. In this case that date would have been on November 22, 1999. The application was therefore made 17 days after the final date for filing appeals.
3The employer has requested that the Board exercise its discretion to extend the time for filing this application. Section 68(4) grants the Board the discretion to extend the time for applying for review if it considers it appropriate to do so.
4According to the employer, the Assistant Manager for the company did not know how to complete the forms for the appeal and on November 16, 1999 telephoned the Employment Standards Officer to elicit his assistance. The Officer did not call back and the Assistant Manager did not file the appeal. It was only after the deadline for filing appeals had passed and the employer was contacted on November 25, 1999 for collection of the amount of the Order to Pay, that the Assistant Manager again contacted the Officer. She was advised on how to complete the form and allegedly filed it immediately. That appears not to be strictly true as the application is dated December 1, 1999, as is the cheque submitted with the application. The Board has no information of when the application was sent by registered mail, but the Board did not receive the application until December 9, 1999.
5It appears that while the application was not filed in a timely manner, the applicant had formed the intent to file an appeal within the 45 day time limit. The employer contacted the Officer for some assistance in completing the form on November 16, 1999, prior to the November 22nd deadline. The Board notes that there is no obligation on an Officer to have to assist anyone in filing an appeal, and that in the normal course the fact that an Officer has not returned a telephone call from a prospective applicant will not be grounds for an extension. However, in this case the Board accepts that the employer had every intention of filing a timely appeal. While it failed to complete the forms and file them in a timely manner, the Board is satisfied that the employer did not file its application in an inordinately tardy manner. If, as appears to be the case, the employer filed its appeal on December 1, 1999, it did so about eight days after the deadline.
6In these circumstances the Board exercises its discretion to extend the time for filing this application to December 9, 1999.
"Gail Misra"
for the Board