3630-00-ES Donna Trifone, Applicant v. EPS Software Consultants Ltd., and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 43003207
BEFORE: Anthony Brown, Vice-Chair.
APPEARANCES: J. Perry Borden Q.C. for the applicant; Allan Madden and Paul Barber for EPS Software Consultants Ltd.; L. Eisenberg for the Ministry of Labour.
DECISION OF THE BOARD; October 18, 2001
This is an application pursuant to the Employment Standards Act R.S.O. 1990, c.E-14, as amended (“the Act”) for review of a refusal by an Employment Standards Officer to issue an order to pay.
A hearing was held on October 2, 2001.
The application for review asserts that the Employment Standards Officer (“the officer”) should not have refused to order the employer to pay certain amounts, particularly in respect of commissions claimed by the applicant. However, at the commencement of the hearing, counsel for the applicant advised the Board that the applicant no longer disputes the officer’s order in respect of the amounts that the employer was assessed after the officer’s investigation. (The employer had paid the assessed amount within the required time, and accordingly no Order to Pay was issued in this matter.)
However, the applicant raised a new ground for review, namely that the officer should not have made any finding as to the applicant’s entitlement to termination pay. The applicant seeks a decision by the Board that affirms the officer’s finding with respect to those items which the applicant listed on her claim form, and that excludes any determination of her entitlement to termination pay.
The Facts
The applicant was employed by the responding party employer, EPS Software Consultants Ltd. from July 24, 2000 to September 25, 2000. Her employment was terminated by letter dated September 25, 2000, although it appears she may have been paid for some days following that date. She filed a complaint with the Director of Employment Standards at the Ministry of Labour on October 17, 2000. Her claim form lists claims with respect to overtime, commissions, incorrect deductions, vacation pay, missing RRSP employer contributions, back wages, and a parking allowance. It makes no mention of a demand for termination pay. It cites the reason why the applicant was no longer employed as “unlawful dismissal”.
The applicant and employer were both present at a fact-finding meeting held by the officer on November 30, 2000.
The officer wrote a detailed narrative report and found that the employer was liable to pay the applicant the sum of $2,032.00 for unpaid commissions and vacation pay. As mentioned, this amount was subsequently paid by the employer. The officer’s letter to the parties dated January 31, 2001 (to which the narrative report was attached) states that the officer did not find that the employer had contravened section 8 (unauthorized deductions) or section 57 (termination pay). The narrative report explains that the applicant was not entitled to termination pay because she had not been employed by the employer for at least three months. Indeed, there is no dispute by the parties that she is not entitled to termination pay under the Act.
Submissions
- The issue raised by the applicant is that the officer treated the complaint as including a demand for termination pay, and therefore made a determination on that issue. The applicant states she never claimed termination pay and that the officer, by making a determination on the issue, may have deprived her of her common-law right to bring a civil action for wrongful dismissal, by virtue of section 64.3 of the Act. Section 64.3 states:
64.3 (1) Subject to subsection (4), an employee who files a complaint under the Act in respect of any of the following matters is not entitled to commence a civil action seeking a remedy for the same matter:
Wages owing to the employee.
A failure to comply with section 13.l.
A failure to comply with a provision of Part X.
(2) Subject to subsection (4), an employee is not entitled to commence a civil action for wrongful dismissal if he or she files a complaint alleging an entitlement to termination pay or severance pay relating to the same termination of employment.
(3) The employee is not entitled to commence a civil action in the circumstances described in subsection (1) or (2) even if the amount owing to the employee is greater than the amount for which an order can be made under the Act.
(4) An employee is entitled to commence a civil action respecting a matter described in subsection (1) or (2) if the employee withdraws his or her complaint under the Act within two weeks after it is filed.
(5) This section does not apply with respect to complaints that are filed before this section comes into force.
The applicant seeks from the Board a decision on the complaints enumerated on her claim form and not on the issue of termination pay. The applicant wishes to continue with her civil action against the employer for wrongful dismissal. The statement of claim in civil court was dated and served January 11, 2001 and a copy of it was faxed to the Ministry of Labour on January 23, 2001, as indicated in the officer’s narrative report dated January 31, 2001.
In response, the employer stated that it had come to the hearing before the Board prepared to deal with the issues identified in the application for review. However, the employer did not request an adjournment to be able to respond to the applicant’s new issue. The employer asserts that the issue of termination pay was, in fact, discussed at the fact-finding meeting and that it was entirely appropriate for the officer to enquire into and decide all aspects of the matter before her.
The responding party Ministry of Labour asserts that a claim form filed by a claimant under the Act is a preliminary “incoming” step in which the claimant initiates the complaint process. The form itself is not intended to be exhaustive because the matter is referred in the normal course to an officer for a full investigation. The Ministry vigorously objects to the applicant’s suggestion that the officer’s investigation is limited to the items specified in the written complaint, and asserts that there are strong policy reasons for allowing an officer to investigate all potential infractions of the Act. For example, claimants may not be aware of the various claims that can be asserted under the Act when they fill out the form. The Ministry asserts that when the issue of termination pay arose during the course of the officer’s investigation, the applicant should have informed the officer that she was not claiming termination pay and did not want it addressed. The Ministry asserts that the officer had jurisdiction to investigate the matter, did so, and found no entitlement to termination pay.
In reply, the applicant states that the Ministry’s position would impose a “reverse onus” on the applicant to inform the officer that she was not claiming termination pay under the Act, whereas the officer should not have dealt with termination pay in the first place. The applicant was obliged to state what she was seeking in her claim, not what she was not seeking. The officer knew that a civil action had been commenced prior to January 31, 2001, the date of her report. The right to commence a civil action is an important freedom that should not be abrogated by the officer’s actions.
The issue before the Board
The issue before the Board is whether or not the Board can or should make the determination that is requested by the applicant in this proceeding. As mentioned previously, the applicant seeks a decision by the Board essentially affirming the officer’s findings on the items in the written complaint but omitting any reference to termination pay.
In the Board’s view, there is a clear distinction in the Act between a “complaint” and the investigation that follows a complaint. Pursuant to section 64.1.1, a complaint must be filed a written or electronic form approved by the Director. Section 64.3(2) (reproduced above) states:
(2) Subject to subsection (4), an employee is not entitled to commence a civil action for wrongful dismissal if he or she files a complaint alleging an entitlement to termination pay or severance pay relating to the same termination of employment.
The entitlement to commence a civil action depends, therefore, upon what comprises the applicant’s complaint, and not upon what is contained in the officer’s order or refusal to order.
The officer was entitled to investigate whether the applicant was entitled to termination pay. The officer’s investigation was for the purpose of ensuring that the provisions of the Act and regulations are complied with, as per subsection 63(1) of the Act. Moreover, subsection 67(1) of the Act states that an officer may refuse to issue an order to pay where the officer “finds that the employer has paid the wages to which an employee is entitled or has found that the employee has no other entitlements . . . .” It appears from the narrative report that the issue of termination pay was discussed by the parties during the fact-finding hearing. Therefore, a question arises as to the scope or content of the complaint.
Subsections 68(19) and (20) state the Board’s powers in respect of an application for review:
- (19) The Board may, with necessary modifications, exercise the powers conferred on an employment standards officer under this Act and may substitute its findings or opinions for those of the officer who issued the order or refused to issue the order.
(20) Without restricting the generality of subsection (19), the Board may,
(a) if the review is a review of an order, amend, rescind or affirm the order or issue a new order; and
(b) if the review is a review of a refusal to issue an order, issue an order or affirm the refusal.
- A review conducted pursuant to section 68 of the Act involves a hearing de novo with respect to an order or a refusal to issue an order. In the instant application, even if the Board were to make the order requested by the applicant, this would not answer the question of whether the applicant has “filed a complaint” that would bar a civil action under subsection 64.3(2). It is not the Board’s role to answer that question.
DISPOSITION
The Board affirms the officer’s refusal to issue an order to pay.
The application is dismissed.
“Anthony Brown”
for the Board