All Employees Represented by TEAMES v. Filet of Sole Sea Grill Limited, 2000 CanLII 6776

Ontario Labour Relations Board

File No.: 2365-96-ES Date: December 6, 2000

Applicant: All Employees Represented by The Toronto Enforcement Advocacy Model for Employment Standards (TEAMES) Responding Parties: Filet of Sole Sea Grill Limited O/A Fred’s Not Here Steakhouse & Grill Filet of Sole The Red Tomato Restaurant, The whistling Oyster Seafood Cafe and Ministry of Labour

Before: Laura Trachuk, Adjudicator/Referee

Appearances: Jacquie Chic and Elizabeth Long for the applicant Angela Rae and Fred Luk for the responding party employers Bruce Arnott for the Ministry of Labour

Decision

1At the hearing of this matter on December 5, 2000 the Board made the following oral directions:

I have considered the submissions of the parties on the issues raised and have reached a decision about how we are going to proceed.

I understand the good intentions behind the TEAMES project. However, a plan that might work for initiating audits does not necessarily work for an appeal under the Act. The Adjudicators/Referees who have dealt with this matter to date have tried to figure out how this application could proceed in a manner reasonably consistent with the TEAMES intentions. However, this matter must now be structured in a way that will make it possible to litigate.

It is not necessary to disclose the identity of the individuals who initiated the complaint or the application. However, it is not possible to proceed with the hearing of this application without knowing which employees Parkdale/TEAMES is actually representing and what remedies are being sought on their behalf. It will be necessary to prove that the employees are entitled to the monies claimed. This proceeding is not itself, an audit. Employees who claim they worked and were not paid have to come forward to say so. If we know which employees are participating and the amounts they claim to be owed it will not be necessary for the officers to testify. The Adjudicator/Referee notes that it is preferable for employees to choose to identify themselves as wishing to pursue claims at this point than for the Employment Standards Officer to be required to disclose notes of interviews employees thought would be confidential.

However, due to the unusual history of this matter I am ordering that any party who has a list of employees at the relevant time disclose it to Parkdale/TEAMES. Parkdale/TEAMES has until January 26, 2001 to file a list of employees who have retained it to represent them with the Adjudicator/Referee. It should also file particulars pertaining to those employees. Those particulars should include the period of time the employee worked for the employer, the kinds of shifts worked and the employee’s claim, quantified, with respect to the half-hour break period, the boat cruise or the staff meetings. That information must also be disclosed to the employer and the Ministry of Labour. The employer and the Ministry of Labour are then directed to disclose to Parkdale/TEAMES on or before February 9, 2001, any documents they have pertaining to that individual and the relevant issue i.e. time cards, schedules, pay roll records etc..

I am also adjourning this hearing so that it can proceed in a coherent fashion. Furthermore, it seems to me that once we know how much money we are talking about, and given how long ago it all took place, it may be possible to settle the matter. I am therefore asking that a Labour Relations Officer meet with the parties after February 9, 2001. The Officer will report to me by March 9, 2001. If he or she cannot effect a settlement, this matter will be set down for hearing. However, it will not be necessary then, to hear all of the applicant’s evidence-in-chief first as the employer will actually know the case it has to meet.

The issues in this matter are limited to those agreed to and set out in Adjudicator/Referee’s decision of June 22, 1998, specifically, outstanding wages i.e. the boat cruise and the staff meetings and the deduction of the one half-hour eating period.

In summary:

The subpoenas for the officers are quashed as their evidence will not be necessary.

The parties are to provide the applicant with a list of employees from the relevant period forthwith. (At the conclusion of the hearing the Ministry was searching its file for such a list and it was agreed that if it had a one the employer would not have to provide one.)

Parkdale/TEAMES is to provide a list of the specific individuals who have retained it to represent them and particulars of their claims by January 26, 2001.

The other parties are to provide relevant documents in their possession by February 9, 2001.

2I am seized of this matter.