1643-01-ES Paragon Protection Ltd., Applicant v. Tooral Kandhai, Michael Duncan and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 32007724
BEFORE: D. L. Gee, Vice‑Chair.
DECISION OF THE BOARD; October 15, 2001
1Pursuant to the Board’s direction of October 3, 2001, the Board is in receipt of correspondence from the Ministry of Labour and the United Food and Commercial Workers International Union Local 333 (the “Union”). The correspondence from the Ministry of Labour does not indicate that it was copied to Michael Duncan or Tooral Kandhai, the two individuals in whose favour the order to pay was issued, as is required by Rule 110 of the Board’s Rules of Procedure. The Ministry of Labour is hereby directed to immediately comply with Rule 110 in connection with its October 10, 2001 correspondence to the Board.
2In its correspondence of October 10, 2001, the Ministry of Labour indicates that the Employment Standards Officer that issued the Order to Pay has made inquiries and has satisfied herself that, at the time of issuing the Order to Pay, a collective agreement was in place. The Ministry of Labour has further confirmed that there was no permission by the Director of Employments Standards under section 64.5(3) of the Employment Standards Act (the “Act”) to file or maintain a complaint under the Act. The Ministry of Labour submits as follows:
In these circumstances, the Ministry submits that the Order to Pay was issued in error. The Ministry further submits that the Board should set aside the Order and require that any funds or letter of credit posted by the employer with the Director be returned to the employer.
3As the Board set out in its decision of October 3, 2001, an employee to whom a collective agreement applies is not entitled to file a complaint under the Act absent permission of the Director of Employment Standards. Rather, such an employee is required to enforce his rights under the Act by way of the grievance and arbitration process contained in the Collective Agreement. Thus, in the present case, presuming Michael Duncan and Tooral Kandhai to be covered by a collective agreement and the permission of the Director of Employment Standards not having been obtained, it would appear, that they could not file a complaint under the Act. If such is the case, the employment standards officer was without jurisdiction to issue the Order to Pay and, as the Ministry of Labour submits, it ought to be set aside.
4For the reasons set out above, it would appear that the employer’s appeal will succeed. Michael Duncan and Tooral Kandhai are hereby directed to advise the Board, in writing, no later than Monday, October 22, 2001, as to whether they consent to the Board setting aside the Order to Pay issued in their favour.
5Absent the consent of Michael Duncan and Tooral Kandhai to the setting aside of the Order to Pay, this matter will proceed to a hearing as required by section 68(8) of the Act.
“D. L. Gee”
for the Board