1885-00-ES Hampel-Gibson Forest Products Ltd., Applicant v. Carl Folsom, and Ministry of Labour, Responding Parties.

Employment Practices Branch File No. 11000873

BEFORE: Mary Ellen Cummings, Alternate Chair.

DECISION OF THE BOARD; December 27, 2000

1This is an employer appeal of an Order to Pay issued on June 6, 2000 for unpaid wages in the amount of $8,174.40, with an administrative fee of $817.44.

2The employer made its appeal on September 25, 2000, well outside the statutory 45‑day time limit for making an appeal. The employer seeks an extension. Counsel for the Ministry of Labour opposes the request. Section 68(4) of the Employment Standards Act gives the Board the discretion to extend the time limits if it considers it “appropriate to do so”.

3The employer wrote that he thought the employee had agreed to accept less than the amount of the wages that the employer owed him, in recognition that he had stolen items from the employer, and had accepted a used vehicle in partial payment. The employer admitted that he left the communication of the settlement to the employee, and did not attend the Fact Finding meeting. The Employment Standards Officer’s Narrative report indicates that she had some discussion with the employer after the Fact Finding meeting about a proposed settlement, but the claimant advised her that he has not been paid any money. The Officer also wrote that before she issued the Order to Pay, she wrote to the employer seeking voluntary compliance, and requesting payroll records. According to the Officer, she received no response and so issued an Order to Pay.

4The employer does not suggest that he did not receive the Order to Pay. Indeed, he wrote that when he got the Order he was astonished, and made efforts to contact the Employment Standards Officer and advise that the matters had been settled. However, the employer did not follow the information on the face of the Order advising how to appeal, and setting out the time limits for doing so.

5The employer wrote that he operates a struggling small business, and works long hours in the bush, so communication and attention to this sort of matter is difficult. In addition, the employer’s business could not readily come up with the amount to pay into trust. It is worth noting that the employee’s claim to the Employment Standards Branch originally arose because the employer was not able to regularly meet its payroll obligations.

6When the employer did not make a timely appeal nor pay the monies owed to the employee, the Ministry of Labour referred the matter to a collection agency. The employer needed to sell a piece of equipment to come up with the funds; a transaction that took some time. The employer finally perfected its appeal on September 25, 2000. I note in passing that even on the employer’s account, the “settlement” he says he reached with the employee was not finalized; the employer did not pay the $500 cash and the employee did not sign the release the employer wanted.

7The Board has some sympathy with the employer’s plight. He is struggling to run a business. However, the Board also has considerable sympathy for the employee. By all accounts he is owed some money, and has been owed that money for more than a year. For a significant period of time, he continued to work, without being paid, and it is only when he was terminated because the employer could no longer afford him, that he sought the help of the Employment Standards Branch. Having regard to all the circumstances set out, the Board does not consider it appropriate to extend the time for making an appeal.

DISPOSITION

8The Board does not extend the time limits. This application is terminated because the appeal is untimely. There would appear to be no reason why the Director cannot pay out to the employee the monies being held in trust.

“Mary Ellen Cummings”

for the Board