1690-98-ES Daniel James Zettel, a director of Zettel Metalcraft Ltd, Applicant v. James Crowe; Tony D’Agrosa; Greg Sadler; Nick Kryiakoulias; Somphet Onekeo; Stephani Vanheeswyk; Shelley Acheson-Tugeron; Anne Arnold; Peter Curtis; Vito Lozer; David Langford; National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada); CAW, Local 396 and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 41005629
1906-98-ES National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) and its Local 396 on behalf of the employees named in Schedule “B”, Tabs 1, 2 and 3, Applicants, v. Zettel Metalcraft Ltd., Zettel Manufacturing Limited, 506165 Ontario Limited cob Trillium Metal Stamping, and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 30006225
BEFORE: Patrick Kelly, Vice-Chair.
DECISION OF THE BOARD; April 23, 2001
In its decision of August 10, 2000, in Board File No. 1906-98-ES, the Board found that the responding parties, Zettel Manufacturing Ltd. (“Manufacturing”) and 506165 Ontario Ltd. c.o.b. as Trillium Metal Stampings (“Trillium”) were related to the bankrupt responding party, Zettel Metalcraft Ltd. (“Metalcraft”) within the meaning of section 12 of the Employment Standards Act R.S.O. 1990, c.E-14, as amended (“the Act”). The result of this finding was that Manufacturing and Trillium were jointly and severally liable for the outstanding debt of Metalcraft to its former union employees.
The Board’s October 27, 2000 decision in the same matter confirmed that the total amount owing by Manufacturing and Trillium to the former union employees was $2,033,517.77.
The Board’s October 27, 2000 decision also sought submissions from the parties with respect to whether or not the Board should make an Order to Pay in favour of former non-union employees of Metalcraft. Counsel for the Ministry of Labour (“the Ministry”) had submitted that the Board should further require Manufacturing and Trillium to pay the amounts assessed by the Ministry to be owing to former non-union employees of Metalcraft. In a decision dated February 27, 2001, the Board declined to make an Order in respect of the former non-union employees.
Manufacturing and Metalcraft have retained counsel to pursue an application for judicial review of the Board’s August 10, 2000 decision.
File No. 1690-98-ES is a Director’s appeal by Daniel James Zettel from Order to Pay No. D03603 dated June 22, 1998 made against Mr. Zettel. This order is in the amount of $271,034.48. Under the Act, directors are not liable for termination or severance pay entitlements, and accordingly the order against Mr. Zettel relates to wages and vacation pay which had been included in the Ministry’s assessment against Metalcraft.
The Ministry has paid compensation under the Employee Wage Protection Program (the “EWPP”) in the amount of $223,358.99 to the former union employees and $18,712.73 to the former non-union employees of Metalcraft. The Ministry had claimed recovery of these amounts, pursuant to its subrogation rights under the Act, out of any funds which may be paid by Manufacturing, Trillium or Mr. Zettel.
The applicant (“the union”) and the responding party companies in Board File No. 1690-98-ES, together with the Ministry, have engaged in discussions with a view to resolving these matters. The Ministry does not represent the former non-union employees of Metalcraft and is not in a position to consent on their behalf to a resolution.
Under a proposed resolution which has been agreed to by Manufacturing, Trillium and the union, Manufacturing and Trillium will pay a total of $1,000.000.00 dollars to settle all claims of union and non-union employees in both Board files. Nine per cent of that sum ($90,000.00) is to be allocated to former non-union employees, and the remaining 91 per cent ($910,000.00) is to be allocated to former union employees of Metalcraft.
The proposal further provides:
(a) The union’s portion of the funds amounting to $910,000.00 is to be paid in two equal installments of $455,000.00 each. The first installment is due on or before May 9, 2001 and the remaining $455,000.00 is due on or before February 28, 2002. These funds are to be paid in accordance with the letter agreement between the responding companies’ counsel and union counsel dated March 29, 2001, a copy of which is attached as Schedule “A”.
(b) The $90,000.00 in respect of the former non-union employees of Metalcraft are to be payable to the Ministry in two equal installments of $45,000.00 each. The first installment is due on or before May 9, 2001 and the next installment is due on or before February 28, 2002. The names of the former non-union employees, together with the amounts assessed for them are shown on Schedule “B”, attached. The total amount owing to the former non-union employees as set out in Schedule “B”, net of the EWPP payments, is $204,797.35. On receipt of each installment of that total amount, the Ministry will distribute the installments pro rata which will yield approximately twenty-two cents on the dollar per installment to each of the former non-union employees.
(c) In view of all the circumstances of the case, the Ministry will waive its right to pursue recovery of the EWPP compensation it has paid if the matter is settled in accordance with this proposal.
(d) If all of the installments payable in respect of the former union and non-union employees are paid on time, the Board’s August 10, 2000 decision in Board File No. 1906-98-ES will be deemed to have been implemented to the satisfaction of all the parties thereto. In addition, Order to Pay No. D 03603 in Board File No. 1690-98-ES will be rescinded.
(e) If Manufacturing and/or Trillium do not pay the stipulated installments on time, the union and the Ministry can proceed with enforcement against Manufacturing and Trillium for the amounts owing under the settlement as regards the former union and the non-union employees of Metalcraft, and may enforce the Order against Daniel James Zettel, provided that the total realized shall not exceed the amounts owing under the settlement.
I direct that the Registrar forward this decision to the former non-union employees set out in Schedule “B” at their last known addresses. If any former non-union employee listed on Schedule “B” has any objection to the proposed resolution, the non-union employee must inform the Registrar in writing with reasons on or before May 7, 2001 quoting OLRB File Numbers 1906-98-ES and 1690-98-ES. If no written objections are received by the Registrar on or before May 7, 2001, the resolution which has been outlined in this decision will be incorporated in a decision of the Board and will be determinative of the two files in question.
Upon the expiry of the period for objection, I will issue a further decision.
I am seized.
“Patrick Kelly”
for the Board