Pike Irvin et al. v. Shu-Pak Refuse Equipment Inc. and Ministry of Labour
File No.: 4356-98-ES Employment Practices Branch File No.: 53000563 Date: June 29, 2000
Before: Mary Ellen Cummings, Alternate Chair.
DECISION OF THE BOARD
1This is an employee appeal from a decision of an Employment Standards Officer, dated November 10, 1998.
2The employees through their union representative (the CAW), made a claim for severance pay, arising out of the closure of their workplace, Shu-Pak Refuse Equipment Inc., in May 1998.
3The Officer decided that there was a collective agreement in place, and relied on section 64.5(1) and (2) of the Employment Standards Act, which reads:
64.5 (1) If an employer enters into a collective agreement, the Act is enforceable against the employer with respect to the following matters as if it were part of the collective agreement:
A contravention of or failure to comply with the Act that occurs when the collective agreement is in force.
A contravention of or failure to comply with the Act that occurs while the operation of the collective agreement is continued as described in subsection 58 (2) of the Labour Relations Act, 1995.
A contravention of or failure to comply with the Act that occurs during the period described in subsection 86 (1) of the Labour Relations Act, 1995 during which the employer and the trade union are prohibited from changing terms and conditions of employment without each other's consent.
(2) An employee to whom a collective agreement applies (including an employee who is not a member of the trade union) is not entitled to file or maintain a complaint under the Act.
4On that basis, the Officer concluded that the employees were required to seek any entitlements through their grievance and arbitration procedure.
5The applicants, through the CAW filed an Application for Review of that decision. They allege, essentially, that at the time Shu-Pak Refuse Equipment Inc. closed, there was no collective agreement in place. They assert that the employer legally locked out the employees on September 22, 1997 and that no new collective agreement was ever reached. Operations ceased in May or June of 1998.
6The applicants also allege that Shu-Pak Refuse Equipment Inc. sold its production to (Clare) Weber Fabricating Ltd. and that the payroll of Shu-Pak Refuse Equipment Inc. and (Clare) Weber Fabricating Ltd. exceeds the $2.5 million threshold for access to severance pay. Counsel for Victor Mele, a former director of Shu-Pak Refuse Equipment Inc. has provided the Board and the applicants’ representative with information that, if accepted, could establish that the combined payroll of Shu-Pak Refuse Equipment Inc. and (Clare) Weber’s Fabricating Ltd. did not reach the $2.5 million threshold.
7Before this matter is scheduled for hearing, several preliminary matters need to be addressed.
1. Three of the applicants have moved.
8The Board’s mailings to Michael Potter, John Kron and Jeffrey McDonald have been returned. If any of the other parties knows how they can be reached, could they please advise the Board, at the address (quoting the file number) set out on the cover letter. Until the Board receives current addresses for these applicants, we will not continue to send mailings to them.
2. Notice to (Clare) Weber’s Fabricating Ltd.
9In correspondence dated April 29, 1999, the applicants’ union representative identified (Clare) Weber’s Fabricating Ltd. as an interested party in these proceedings, but it does not appear that actual notice has been sent to it. The Registrar is directed to send this decision, and any future correspondence to (Clare) Weber’s Fabricating Ltd. In addition, (Clare) Weber’s Fabricating Ltd. will have an opportunity to make submissions and fully participate in the proceedings.
3. Particulars
10At this point it is essential that the applicants set out their appeal in more detail on two issues:
a) the basis for the belief that section 64.5 does not preclude making a complaint to the Employment Standards Branch;
b) the basis for the claim that the payroll of an entity other than (or in addition to) Shu-Pak Refuse Equipment Inc. should be regarded to determine whether there is a payroll in excess of $2.5. million, triggering access to severance
11With respect to whether or not there was a collective agreement or statutory freeze in place at the time that the employment standards claim arose, it should be an easy matter to plead the facts on which the applicants rely. I anticipate that this issue would be decided first, because the answer to the question would determine the forum in which substantive severance dispute is heard, that is at the Board, or before an arbitrator.
12The second issue requires detailed particulars. In its December 17, 1998 letter to Richard Clarke, Director, Employment Standards, the applicants’ representative wrote:
For your information, this plant was on strike for a number of months. During this time, to no avail, an agreement could not be negotiated. On May 29, 1998, the plant was closed and the employees received the basic payment in lieu of notice. During all of this, the company sold its production to Weber Fabricating in Waterloo.
It is still our opinion, the payroll of this company, along with any sister companies, exceeded the allowable amount under the Act, Section 58(2)(b) thereby, qualifying the employees for the severance package due them.
13In a letter to the Board dated April 29, 1999, the CAW wrote:
Upon further checking I have been informed that Shu-Pak Refuse is being taken over by a company in Waterloo the former General Manager is now located there.
14The CAW provided the address of (Clare) Weber’s Fabricating Ltd.
15From the applicants’ submissions to date it is not clear exactly which entities (or how many) comprise the alleged “sister companies” of Shu-Pak Refuse Equipment Ltd. This information is essential so that any potentially affected parties receive notice of these proceedings.
16The legal and factual basis on which any other entities are linked to Shu-Pak Refuse Equipment Ltd. is also not clear. On the one hand, there is a suggestion of a sale of business, and on the other, there is a suggestion of sister companies. And, except for the allegation that the former General Manager of Shu-Pak Refuse Equipment Ltd. now works at (Clare) Weber’s Fabricating Ltd. there are no other facts alleged to support either suggestion. Both the facts and legal assertions must be particularized by the applicants before this matter can proceed further.
17The applicants are directed to deliver particulars to all the other parties, as set out on the list attached to this decision, and file a copy with the Board, no later than July 28, 2000. If the applicants identify other affected parties, they must similarly deliver the particulars and a copy of this decision to those entities.
18All the responding and interested parties, and any newly identified affected parties, shall have until August 28, 2000 to deliver their responses to those particulars to all the other parties, and to file a copy with the Board.
19Once the Board receives those materials, it will be in a better position to direct the parties about the next steps to be taken.
20The Registrar is directed to place the submissions before this panel of the Board if practical.
“Mary Ellen Cummings”
for the Board