Ontario Labour Relations Board
0934-01-ES Nazneen Dhalla, Applicant v. Ontario Water Ski Association; Marlene Amos, Employment Standards Officer and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 30014409
BEFORE: Harry Freedman, Vice-Chair
DECISION OF THE BOARD; June 28, 2001
This is an application for review under section 68 of the Employment Standards Act, R.S.O. 1990, c. E. 14, as amended (the "Act") for review of the refusal of Employment Standards Officer Marlene Amos to issue an order to pay. The letter advising the applicant of the decision of Ms. Amos was dated October 24, 2001. The applicant filed her application for review with the Board on June 25, 2001, the day it was received by the Board. The applicant, in her application, provides detailed submissions explaining why the application was filed well after the time prescribed by section 68(3)(b) of the Act.
Section 68 (4) of the Act permits the Board to extend the time for making an application for review if the Board considers it appropriate to do so. The applicant seeks an extension for making the application. The applicant indicated that she had been dissatisfied with her fact finding meeting with the Employment Standards Officer. After she received the Officer’s decision, she contacted the supervisor in the Ministry of Labour’s branch office and subsequently filed a letter of appeal with that office. Attached to the application was the applicant’s letter of appeal addressed to Ministry of Labour dated December 6, 2000.
The applicant contacted the Ministry of Labour’s branch office in February to inquire about the status of her appeal. She asserts that she was told by the supervisor of that office that her appeal had to be filed with the Board and that the office would forward her documents to the Board. She also submits that she contacted the Board several weeks later and was informed that no appeal had been received. She said that she contacted the Ministry of Labour’s branch office supervisor once again and was told that her material had not been forwarded to the Board and that she should contact the Employment Standards Officer who had refused to issue an order to pay. Ultimately, the applicant contacted the Board and was advised to file the application on the proper form and provide reasons for having filed the application so long after the letter advising her of the Officer’s refusal to issue an order to pay.
The applicant submits that she was “not aware of the proper procedure” until she had contacted the Board. The applicant does not make reference to the following statement in the letter she received from the Employment Standards Officer which appears at the bottom of the letter. It has a title in bold print and capital letters which provides:: “EMPLOYEE’S RIGHT TO APPLY FOR REVIEW:” Following underneath that title the caption states:
The Employment Standards Act states that an employee may apply for a review if dissatisfied with the decision of the Officer. An application for review must be made within 45 days of the date of the order or the date of the letter informing the employee of the decision. The Ontario Labour Relations Board may extend the time for applying for a review if it considers it appropriate to do so.
The last day for filing a timely application for review was December 8, 2000. The applicant forwarded her letter dated December 6, 2000 to the Ministry of Labour office to the attention of the Branch Manager of that office. Had that office forwarded that letter to the Board (as is often the case when Ministry of Labour offices receive material that ought to be directed to the Board) shortly after it was received it is likely that the Board would have considered it appropriate to extend the time for making the application. In this case, according to the applicant, the branch office undertook to forward her letter of appeal to the Board but did not do so. While I recognize that the October 24, 2000 letter advises the employee that an application for review must be made within 45 days of the date of the letter, it does not state where such an application must be made. It is certainly understandable for the applicant to have written her letter of appeal to the Ministry of Labour Branch Office as the information she received about filing a review merely indicates that the Board may extend the time for applying, but does not advise the employee that the application for review must be filed with the Board, nor does it provide an address to which an application must be sent.
In the circumstances, I am satisfied that the applicant had formed the intention to make the application for review within the 45 day period specified under the Act and had taken steps consistent with that intention within the time for making the application. The obscure nature of the information provided by the Ministry of Labour in its letter to an employee advising of the refusal to issue an order is, in my view, an appropriate basis for extending the time for making an application for review where a letter clearly setting out that the employee wants to challenge the conclusions of an Employment Standards Officer is given to the Ministry of Labour within 45 days of the date of the letter advising the employee of the refusal to issue an order to pay.
The Board considers it appropriate to extend the time for making this application. Therefore, the Board hereby extends the time for applying for review of the decision of Employment Standards Officer Marlene Amos refusing to issue an order to pay dated October 24, 2000 to June 25, 2001, the date the application was made. Therefore this application for review is now timely and is referred to the Registrar.
This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board