My Music Factory Inc. v. Charlene DeGouw, and Ministry of Labour

File No.: 1221-01-ES Parties: My Music Factory Inc., Applicant v. Charlene DeGouw, and Ministry of Labour, Responding Parties.

Employment Practices Branch File No.: 30015072

Before: Anthony Brown, Vice-Chair.

Appearances: Marguerite McLeod for the applicant; no one appearing for the responding party Charlene DeGouw; Richard Housen for the Ministry of Labour.

Decision of the Board: December 3, 2001

1This is an application pursuant to the Employment Standards Act for review of an Order to Pay (No. 56225) issued by an Employment Standards Officer ("the Officer").

2The Officer found that the applicant owed the claimant Charlene DeGouw the sum of $653.02 representing vacation pay and termination pay.

3The Ministry of Labour takes the position that this application is untimely because it was filed more than 45 days after the date on which the Order to Pay was issued. The Ministry asserts that the Order and the Narrative Report, both dated April 11, 2001, were sent to the applicant by registered mail. Counsel for the Ministry of Labour produced a copy of a signature that was obtained by Canada Post when it delivered the Ministry's letter to the address of the applicant company. Ms. McLeod, on behalf of the Music Factory Inc. asserts that the company never received the April 11, 2001 letter. However, Ms. McLeod explained that the company shared an office with another company, and a receptionist would normally receive incoming mail. She agreed that it would be usual practice for the receptionist to sign for the letter. However, Ms. McLeod did not recognize the signature that was obtained by Canada Post.

4The Ministry of Labour sent a follow-up letter to the applicant by regular mail on or about May 10, 2001, reminding the applicant of the Order to Pay. Ms. McLeod candidly admitted that the applicant did receive this letter.

5This application for review was filed on July 24, 2001, almost two months after the expiry of the statutory period for filing. The Act requires that an application for review be filed no later than 45 days after the date of the Order to Pay. May 28, 2001 is the next business day following the expiry of the 45-day period. I am satisfied on a balance of probabilities that the Ministry's April 11, 2001 letter was delivered to the correct address of the applicant. The applicant routinely received its mail through a receptionist. Someone at the applicant's address did sign for the letter, although the person did not clearly print his or her name on the Canada Post form. In my view, it is more than likely that the letter was either misplaced once it had arrived at its location, or was ignored by the applicant. I note, for example, that the applicant did receive the Ministry's follow-up letter dated May 10, 2001, and chose not to respond to it by filing an application for review. Instead, the impetus for the application for review was a contact from the collection agency to enforce the Order. Indeed, Ms. McLeod stated that she and her partner were concerned that they, and not the company, could be held personally responsible for the amount of the claim.

6The Board has discretion to extend the time for filing if it considers it appropriate to do so. I decline to extend the time. There has been a significant period of delay in this case and the 45-day period is not an onerous one to meet. I note that even if the 45-day period were calculated from May 10, 2001 instead of April 11, 2001 (and I do not suggest that it should be), the application would have to have been filed by the end of June, 2001 in order to be timely. The applicant missed this mark by over three weeks, by filing the application on July 24, 2001. I am not satisfied that the applicant made a serious attempt to comply with the 45-day requirement or that there are extenuating circumstances that might justify an extension. Accordingly, the Board finds that the application should be dismissed as untimely.

7At the hearing of this matter on November 29, 2001, I inquired into the basis of the applicant's position on the merits. Ms. McLeod takes the position that the Music Factory Inc. was the employer of Ms. DeGouw, and that the general partnership, carrying on business as the Music Factory, was not the employer. The Officer made his Order against both the company and the partnership. However, inasmuch as the company has paid the money into trust with the Director of Employment Standards and agrees that it was the employer of the claimant, the issue of the liability of the partnership does not have to be determined by the Board.

8Ms. McLeod asserts that the company gave the claimant one week's notice of termination. She states that the claimant and some co-workers were told they would be permanently laid off at the end of the following week, January 19, 2001. This information was conveyed verbally on the Friday preceding the final week of work, and was confirmed by letter to the employees delivered on the following Tuesday. It appears, therefore, the claimant did not receive her entitlement to one week's written notice of termination. In addition, Ms. McLeod was unable to produce a copy of the letter terminating Ms. DeGouw's employment. Therefore, even if this application were timely or if time limits were extended by the Board, there are no actual records to corroborate the applicant's assertion that proper notice was given. The verbal notice allegedly given to the claimant does not satisfy the statutory notice requirement found in section 57 of the Act and in Regulation 327.

DISPOSITION

9The Order to Pay is affirmed and the application is dismissed. The Director of Employment Standards is directed to pay the money held in trust as follows:

To the claimant Charlene DeGouw $653.02

To the Government of Ontario

Consolidated Revenue Fund $100.00

Interest on the money in trust shall be paid to the above recipients pro rata.

"Anthony Brown"

for the Board