3102-00-ES Ron Costescu, Applicant v. Capers Casual Dining and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 21104219
BEFORE: Pamela A. Chapman, Vice‑Chair.
APPEARANCES: No one appearing for the employee; no one appearing for the employer; Graine McGrath for the Ministrhy of Labour.
DECISION OF THE BOARD; October 18, 2001
This is an application for review of the decision of an Employment Standards Officer, pursuant to section 68 of the Employment Standards Act as amended by the Economic Development and Workplace Democracy Act, 1998, S.O. 1998, c.8 (“the ESA”).
The applicant (“the employee” or “Costescu”) filed a claim with the Ministry of Labour, seeking the payment of termination pay by the responding party (“the employer” or “Creg Quay”). The officer appointed to investigate the claim concluded, having regard to the information provided by the applicant and by the employer, that the employee had engaged in behaviour which would constitute wilful misconduct and was therefore not entitled to vacation pay. He therefore declined to issue an Order to Pay. The employee asks the Board to find that the exemption does not apply and to order the employer to pay termination pay.
The hearing in this matter was scheduled for July 12, 2001. Both the applicant and the employer received notice of the hearing at the addresses provided by the applicant in his application for review.
On the day prior to the scheduled hearing the employer advised the Board that it did not intend to attend. On July 12, 2001, the Board convened the hearing and waited the customary half hour, but no one appeared on behalf of the applicant.
As the applicant bears the onus of establishing some basis for the Board to issue an order for termination pay, I have no option but to dismiss the application for review given his failure to attend at the hearing.
DISPOSITION
- The Application for Review is dismissed and the decision of the officer not to issue an Order to Pay is upheld.
“Pamela A. Chapman”
for the Board