Court File and Parties
0713-00-ES Kim Larsen, Applicant v. Southern Graphic Systems – Canada, B. James Lange, Employment Standards Officer and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 40010775
BEFORE: Harry Freedman, Vice‑Chair.
DECISION OF THE BOARD; December 8, 2000
Decision
1This is an application for review of the refusal of Employment Standards Officer B. James Lange to issue an order to pay. It appears that the applicant claims additional vacation pay. Mr. Lange, by letter dated May 4, 2000 advised the applicant that he was denying her claim. The applicant filed her application for review on June 2, 2000. The Board issued the notice of hearing in this matter on September 20, 2000, advising the parties that the hearing was scheduled to take place on December 14, 2000, after the parties had met on August 30, 2000 but did not settle this matter. A second meeting took place on November 28, 2000 in an attempt to settle this matter.
2Counsel for the employer by letter dated December 1, 2000 advised the Registrar (and subsequently provided that letter to the other parties on December 6, 2000) that the employer wished to have the hearing scheduled for December 14, 2000 adjourned to the next available date. The reasons for seeking the adjournment as set out in counsel’s letter are:
During the week of November 20, 2000, the management team of our client was advised that they were to attend at their parent company’s head office for a three day conference in Richmond, Virginia in the United States. That conference takes place over the scheduled hearing date in this matter. At least two of the witnesses that we intend to call in this hearing are currently required to attend in Richmond, Virginia on that date.
We attended at the second mediation of this matter on November 28, 2000 in an effort to attempt to settle the matter. Unfortunately, those attempts were unsuccessful and it appears that this matter will be proceeding to a hearing. As a result of the above circumstances, it will be very difficult for our client to appropriately present its case to the Board if the hearing proceeds on December 14, 2000 as scheduled. Therefore, we hereby request from the Board an adjournment of the hearing to the next available date.
Counsel for the employer also suggests that between the two parties there will be at least seven witnesses and that the hearing will proceed beyond the single day presently scheduled.
3Counsel for the applicant opposes the request for the adjournment. The Board has received no indication from the Ministry of Labour whether it consents, opposes or takes no position with respect to the applicant’s request. Counsel for the applicant points out that the hearing date was set well before the conflict arose. He also submits that the issue in this application is a relatively narrow one involving whether employees were required to take their vacations in the year in which they were earned or in a subsequent year and therefore the hearing should not take more than one day to complete.
4The employer’s inability to attend the hearing stems from its parent company determining that it is more important for members of its management team, two of whom are to be witnesses in this proceeding, to attend a conference in Virginia than attend a hearing before the Board. The Board had scheduled its hearing in this matter well before the employer was told by its parent company that there was to be a conference taking place on the date set for the hearing of this matter. In my view, the conflict arises out of a choice that the employer has made; it is sending (or wishes to send) two potential witnesses to a conference instead of having them attend at the Board. As counsel for the applicant points out, the employer could have taken steps to arrange its affairs so as to avoid the scheduling conflict.
5The request for the adjournment is denied. This matter is to proceed as scheduled before the Board on December 14, 2000.
6This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board