728096 Ontario Limited, operating as Blacksheep Pub v. Andrew Bayer and Ministry of Labour
Before: John Morgan Lewis, Vice-Chair.
Appearances: Sami Akiki for the applicant; no one appearing for the responding party employee; Joe Ferraro for the Ministry of Labour.
Decision of the Board; December 18, 2001
Decision
1This is an application for review of an Order to Pay pursuant to section 68 of the Employment Standards Act, R.S.O. 1990, c.E-14, as amended, (the "Act").
2At the hearing in this matter on December 18, 2001, no one appeared on behalf of the responding party, Andrew Bayer. In accordance with its usual practice, the Board waited until 10:00 a.m. before commencing the hearing. As no one had appeared by 10:00 a.m., the Board proceeded with the hearing. No one appeared in the course of the hearing on behalf of Mr. Bayer.
3Rule 45 of the Board’s Rules of Procedure permits the Board to decide an application if a party fails to attend or fails to participate. Rule 45 is set out as follows:
- Where any person has been notified of a hearing or consultation in the way required by these Rules and fails to attend (in the case of an oral hearing or consultation) or to participate (in the case of an electronic hearing), the Board may decide the application without further notice to that person and without considering any document filed by that person.
4The Board is satisfied that Mr. Bayer received the Notice of Hearing (Form B-90). Paragraph 4 of the Notice of Hearing sets out the consequences for failing to appear at the hearing and reads as follows:
- IF YOU DO NOT ATTEND THE HEARING, THE BOARD MAY DECIDE THE APPLICATION WITHOUT FURTHER NOTICE TO YOU AND WITHOUT CONSIDERING ANY DOCUMENT FILED BY YOU.
5Having regard to the representations made by Sami Akiki on behalf of the applicant, the Board finds that Mr. Bayer voluntarily quit his employment with the applicant and was not terminated. Mr. Bayer is therefore not entitled to termination pay in accordance with section 57 of the Act.
6The Board rescinds Order to Pay No. 57592 dated April 24, 2001. The Director of Employment Standards is directed to disburse the monies it holds in trust, including any interest accrued, to the applicant as soon as practical.
"John Morgan Lewis"
for the Board