3404-98-ES Tammy Villeneuve, Applicant v. Windmill Point Restaurants Inc. and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 23000409
BEFORE: Pamela A. Chapman, Vice-Chair.
APPEARANCES: Bernadette Clement for the applicant; Karima Chatur for the Ministry of Labour.
DECISION OF THE BOARD; September 26, 2000
1This is an application for review of the decision of an Employment Standards Officer, pursuant to section 67 of the Employment Standards Act as amended by the Economic Development and Workplace Democracy Act, 1998, S.O. 1998, c.8 (“the ESA”).
2The applicant (“the employee”) filed a claim with the Ministry of Labour on November 9, 1998, seeking the payment of unpaid wages for August and September 1997. The officer appointed to investigate the claim concluded that her claim was not timely, having regard to section 82.3 (1) of the ESA. She therefore refused to issue an Order to Pay. The applicant appeals that decision, and takes the position that her claim should be permitted pursuant to the provisions of section 82.3(2).
3At the hearing held in this matter on September 21, 2000 the applicant and the Ministry of Labour had an opportunity to give oral testimony and to introduce into evidence various documents, as well as to make submissions concerning the application for review. The employer did not attend. Having regard to the evidence and to those submissions, the following is my decision.
The Facts
4The applicant worked for Windmill Point Restaurants Inc. for approximately two years as a bartender. During the course of her employment the restaurant was in some financial difficulties, which was apparent to the applicant and to employees generally, and in November 1997 its owners filed a proposal in bankruptcy. The restaurant remained open and was operated for some time by the trustees, before closing finally in or about April 1998.
5Villeneuve claims that she was not paid at all during the months of August and September 1997. However, she was paid subsequently and payment continued until the restaurant closed and she ceased to work. She complained to the owner and manager of the restaurant on numerous occasions that she was owed wages, and each time they asserted their intention to pay her once the financial situation improved. As she was friendly with them both, she decided not to make a formal complaint and to wait in the hope that they would be true to their word.
6Other employees also suffered a period of lost wages, although most seem not to have been paid right around the time the owners filed the proposal in bankruptcy, in late October and early November 1997. On February 4, 1998, while the restaurant was still open, one employee who worked as a part-time server filed a claim with the Ministry of Labour seeking payment of unpaid wages. Subsequently, on various dates between the end of February and the end of May 1998, five other employees filed additional claims.
7The first complaint was assigned to an employment standards officer for investigation, but the file was subsequently transferred to another officer due to a maternity leave. The second officer testified at the hearing about her investigation of all six claims filed in early 1998, which began with her contacting the first claimant within a few days of her being assigned the file on March 30, 1998. During that discussion she learned that other unnamed employees were also likely owed wages by the bankrupt employer, and she asked the first claimant to “spread the word” that an investigation was underway and that they should file claims if they were owed wages. The officer also made a demand to the employer that it produce payroll records for all employees, in order that she could do a full audit and determine whether wages were owed to others.
8The officer was unable to obtain payroll records, despite making substantial efforts to obtain them from the bankrupt employer, the trustee, Revenue Canada and the landlord. She assumed responsibility for the file just as the restaurant closed finally, and this also limited her ability to contact other employees or search for records. Her efforts to have the first claimant “spread the word” seemed to have had some effect, however, as five further claims were filed in the following few months. These were all consolidated with the first claim, and the officer ultimately issued an Order to Pay against a related company for unpaid wages for six claimants for varying periods, on September 18, 1998.
9The officer testified that during her investigation of the six claims none of the employees mentioned Tammy Villeneuve, or indeed provided any specific information about wages owed to any other employees. She did form the opinion that money was likely owed to others, given what she learned about the employer’s financial difficulties and the treatment of the six claimants she was investigating, but due to the absent payroll records was unable to identify any other employees or their entitlements. As the business was no longer operating, all she could do was encourage other employees to come forward by asking each claimant to speak to any others they were still in touch with, which she did.
10Villeneuve testified that she knew the first claimant, and several of the others, and was aware that they had made claims to the Ministry of Labour during the relevant period. She decided not to make a claim, however, because she hoped that her friendship with the owner and manager would result in her being paid without making a formal demand, and also because both of these individuals had assured her that she had two years to make a claim to the Ministry. She ultimately decided to file her claim in November 1998 because by that time it was clear to her that the wages weren’t otherwise going to be paid.
11Villeneuve’s claim was assigned to another employment standards officer, as the earlier file on Windmill Points Restaurants Inc. had been closed with the issuing of the Order to Pay. The officer who determined that her claim was untimely was unaware that earlier claims had been investigated, and the officer who issued the Order to Pay did not know that another claim had been filed.
The Decision
12Section 82.3 (1) and (2) provide as follows:
82.3 (1) In a prosecution or proceeding under the Act, no person is entitled to recover money that became due to the person more than six months before the date on which the facts upon which the prosecution or proceeding is based first come to the knowledge of the Director.
(2) Despite subsection (1), if a person's entitlement under the Act comes to the knowledge of an employment standards officer when he or she is investigating the complaint of another person, the first person is entitled to recover money that became due to the first person not more than six months before the date on which the second person's complaint is filed.
13As noted above, the employment standards officer relied upon section 82.3(1) in dismissing the employee’s claim as untimely. The employee asserts, however, that her claim should be allowed under section 82.3(2), as her entitlement came to the knowledge of an employment standards officer during the course of an earlier investigation.
14It is not disputed that neither Villeneuve’s identity nor her specific claim for unpaid wages for the period of August and September 1997 came to the attention of any employment standards officer prior to her filing her own claim in November 1998. Counsel for the employee submits, though, that the first officer’s general knowledge that other employees had not been paid by the bankrupt employee during the period of its financial difficulties is sufficient to invoke the exception contained in sub-section(2) of section 82.3. Counsel for the Ministry of Labour, on the other hand, asserts that the section requires specific knowledge, both of the employee’s identity and of the nature of her entitlement.
15Section 82.3(2) stands as an exception to a stringent time limit which denies claimants access to a procedure for enforcing their rights under the statute, and I am satisfied that it should therefore be given a large and liberal interpretation. I accept, as urged by counsel for the employee, that there may be circumstances where knowledge comes to the attention of an employment standards officer other than as a formal audit which produces specific information about individual employees, which may nonetheless permit a later claimant to invoke section 82.3(2). For example, if in the course of an investigation an officer learns that all of the employees of a particular employer have not been paid during a particular pay period, it seems to me an argument could be made that the officer had knowledge specific enough to support a later claim by one of the group.
16In the case before me, though, the evidence is far short of such a borderline case. Despite making significant inquiries, and attempting to contact other employees through the claimants who came forward, the investigating officer had no particular information about which employees might have been unpaid and for which periods. Even within the group of claimants there was significant variation as to when they had been paid and when not, and they occupied a wide and inconsistent array of positions, from general manager to part-time server. From this information it would have been impossible for the officer to reach any general conclusion about the payroll practices of the employer, or to identify either particular employees or a defined group.
17In these circumstances, and given the undisputed evidence that the officer had no particular information about Tammy Villeneuve, I am forced to conclude that her claim is untimely pursuant to section 82.3(1), and that she cannot rely upon section 82.3(2) as an exception to the six month time limit. This is an unfortunate result, as the employee appears to have a valid claim for unpaid wages. However, the Board is granted no discretion under section 82.3 (1) to extend the time for filing claims for wages, and I have concluded that the narrow exception in sub-section (2) simply does not apply on the specific facts before me.
DISPOSITION
18The Application for Review is dismissed.
“Pamela A. Chapman”
for the Board