Robert Dash v. The Centre for Corporate Resources Incorporated and Ministry of Labour
1502-99-ES Robert Dash, Applicant v. The Centre for Corporate Resources Incorporated and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 32005188
BEFORE: Marilyn Silverman, Vice‑Chair.
APPEARANCES: Randy Samms, Robert Dash and Richard Lee for the applicant; Laurie Eisenberg for the Ministry of Labour; Andrew M. Pinto, Richard Fernandes and Tracy Parejo for the responding party.
DECISION OF THE BOARD; April 11, 2000
This is an employee appeal filed under section 68 of the Employment Standards Act, R.S.O. 1990, c.E.14, as amended (the “Act”) against the refusal by an Employment Standards Officer to issue an Order to Pay in the applicant’s favour. The Employment Standards Officer denied the claim on the basis that it was filed beyond the six (6) month recovery period provided for in the Act.
After hearing the evidence of the applicant and the submissions of the parties on the issue of timeliness for the recovery of monies under the Act, I issued the following oral ruling:
Having regard to the argument and evidence and with reference to the relevant sections of the Employment Standards Act, I find that the applicant is not entitled to recover any money that may have been due on the basis that the claim was made on December 8, 1998, the date the completed form was provided to the Ministry of Labour. That date was more than 6 months after the monies would have been payable. The application is therefore dismissed. My full written reasons will follow.
These are the reasons referred to in that oral ruling.
The applicant asserts that his commission based payment fell short of the minimum wage provisions of the Act.
At the hearing of this matter, the responding employer and counsel for the Ministry of Labour argued that the matter should be dismissed because the statute precluded the recovery of any money in these circumstances.
The provisions of the Act that are relevant to this appeal are sections 82.3(1) and 82.4(1)1.
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.
82.4 (1) The facts upon which a proceeding or prosecution is based shall be deemed to have first come to the knowledge of the Director on the following date in the following circumstances:
In the case of an employee who files a complaint under the Act, the date on which the Ministry receives the complaint in a written or electronic form approved by the Director.
In the case of an employee whose entitlement under the Act comes to the knowledge of an employment standards officer when he or she is investigating the complaint of another employee, the date on which the employee's entitlement comes to the officer's attention.
In the case of a failure to pay wages to the Director in trust as required by an order, the date that is 46 days after the order is delivered to the person required to pay or is served on the person.
The facts related to this part of the case are largely not in dispute with the exception of the precise date that the applicant resigned his employment. The applicant asserts that he resigned on May 5, 1998; the employer’s position is that he left on May 1, 1998. The applicant gave sworn evidence that he first contacted the Ministry of Labour on October 9, 1998 and obtained a form to complete and send to his former employer in order to attempt to resolve the claim. That form was returned to the Ministry of Labour on November 3, 1998 at which time a Claim form was provided to the applicant. The Claim form was signed and dated December 8, 1998. The applicant asserts that he was told that the minimum wage claim might not be subject to the 6 month recovery limit.
The applicant argues that the information he received from the Ministry of Labour led him to believe that the six months referred to in the statute was a six month time limit for the filing of the claim. Basically, if his resignation occurred on May 5, 1998 he understood that he had until November 5, 1998 to file a claim for any amounts owed to him. If as the employer asserts he left the employ on May 1, 1998 he had until November 1, 1998 to make his claim. The Claim form was signed and dated December 8, 1998 but the top of the form was stamped by the Ministry of Labour on November 3, 1998. The applicant asserts that he was advised that November 3, 1998 would be the correct date to be used and that effectively the claim would be made in time to allow him to claim the monies he said were due to him.
The statutory provisions referred to in paragraph 6 above, show that the date of filing of the complaint is the date on which the Ministry of Labour “receives the complaint in a written or electronic form approved by the Director”. In this case, the document marked “Claim” which the applicant signed and returned to the Ministry on December 8, 1998 must be the written form contemplated by the legislation. I cannot accept the applicant’s submission that either the October 9, 1998 form provided to the employer as a form of demand letter or the November 3, 1998 blank Claim form provided to the applicant for him to complete constitutes a “complaint in a written or electronic form approved by the Director”.
Having determined that December 8, 1998 is the date the Ministry received the complaint from the applicant, that becomes the date upon which the facts upon which this proceeding are based were deemed to have first come to the knowledge of the Director. Therefore, in accordance with the provisions of section 82.3(1) of the Act, the applicant is not entitled to recover money that would become due more than 6 months prior to December 8, 1998. That date is June 8, 1998. If there were any monies due they could only have become due on or before the applicant’s resignation early in May 1998. Whether as the applicant asserts his resignation was May 5, 1998 or as the employer asserts it was May 1, 1998 the claim was too late.
I do not find the applicant’s position that he was misdirected or misunderstood his conversations with various Ministry of Labour personnel to assist him in this matter. As was pointed out by counsel for the Ministry of Labour nothing in the Act gives an Employment Standards Officer the power to overturn the Act. I am equally not persuaded by the applicant that the minimum wage provisions are somehow not covered under section 82.3(1).
Having regard to the above, this application was accordingly dismissed.
“Marilyn Silverman”
for the Board