Court File and Parties
File No.: 0745-00-ES Employment Practices Branch File No.: 34002469
Applicant: CAPS (Complete Asset Protection Systems) Responding Parties: Giovanni B. Carlos, Catherine Bates, Employment Standards Officer and Ministry of Labour
Before: Mary Ellen Cummings Alternate Chair.
Decision of the Board: October 16, 2000
Decision
1This is an application under section 68 of the Employment Standards Act, R. S. O. 1990, c. E. 14, as amended (the "Act") for review of Order to Pay No. 56666 issued by Employment Standards Officer Catherine Bates on May 25, 2000. The Order to Pay requires the applicant to pay a gross amount of $832.00 together with $100.00 in respect of statutory administration costs. The applicant filed its application for review on the correct form July 10, 2000 and had paid $660.00 to the Director in Trust in June 2000. The applicant deducted $272.00 from the total amount of the Order to Pay, apparently in respect of statutory deductions. The Order to Pay does contemplate that statutory deductions may be withheld from the gross amount of the order so that the net amount together with the statutory administration costs may be paid to the Director in trust in order to make an application for review.
2The Registrar, by letter to the applicant dated September 1, 2000 advised the applicant that the Board required a breakdown of the statutory deductions withheld in respect of each employee to whom the order to pay relates. The letter goes on to state:
Until the Breakdown of Statutory Deductions is provided the Application will be treated as incomplete and will not be processed further. The difference between the amount of the Order to Pay and the amount and the amount submitted to the Director must be accounted for.
3In response to the Registrar's letter, the applicant did not provide a breakdown. By decision dated September 20, 2000, a different panel of the Board set out the history of the Board's efforts to determine why there is a $272.00 difference between what the Order to Pay requires be paid before the application can be considered complete, and what the applicant has paid to the Director. Once again, the applicant was directed to either pay the additional $272.00 to the Director or provide the Board with a breakdown of the statutory deductions.
4The applicant wrote on October 6, 2000:
We have now received a letter from Mr. Tim R. Parker registrar asking us to supply a breakdown of the statutory deductions which are as follows:
Hourly Reg. Rate (40 @$10.00) $400.00
CPP-Employee $(10.35)
EI-Employee $( 9.60)
Federal Income Tax $(19.50)
We have now satisfied all demands on us and we request you proceed expeditiously of hearing our appeal.
5The applicant's explanation, with respect, makes no sense. It accounts for only $39.45 in deductions, not the $272.00 difference between the Order to Pay amount and the amount the applicant paid in. A letter of June 2, 2000 to the Officer from the applicant casts some light. The applicant asserts that the Officer has made a mathematical calculation error in the Order to Pay. The applicant asserts that the employee worked 5 days, for 8 hours each day, at a rate of $10.00 an hour, for a total wage of $400.00. The employer asserts that the statutory deductions would be $120.00.
6It appears that the applicant decided to pay to the Director, what it thought the employee was owed, not what the Order to Pay required. Although the figures still do not add up, this does explain, in part, why the applicant remitted less than the Order to Pay.
7As the Board's previous decision made clear, section 68(7) requires that the amount of the Order to Pay must be paid to the Director before an application for review is properly made. The applicant has still not paid the amount of the Order to Pay, and so, has not made a proper application. The Board's previous decision directed the applicant to provide a breakdown of the statutory deductions or pay the $272.00 to the Director, and if it did neither, the application would be dismissed. The applicant has done neither. Consequently, as the Board warned, this application is dismissed because it does not comply with section 68(7).
DISPOSITION
8The application is dismissed. Since there is no application before the Board there is no impediment to the Director paying out to the employee the monies held in trust.
"Mary Ellen Cummings"
for the Board