Ontario Labour Relations Board
File No.: 3618-00-ES Employment Practices Branch File No.: 42003493
Daniel Predie, Applicant v. Custom Comfort Systems Inc., and Ministry of Labour, Responding Parties.
Before: David A. McKee, Vice-Chair.
Decision of the Board: April 25, 2001
Decision
1This is an application for a review of a decision of an employment standards officer pursuant to section 67 of the Employment Standards Act, R.S.O. 1990 ch. E-14 ("the Act"). The application was filed with the Board on March 8, 2001. The date on the officer's decision is December 13, 2001. The application therefore ought to have been filed on or before February 6, 2001.
2The application itself contains much criticism of the manner in which the Employment Standards Officer conducted her investigation. That is not relevant to a proceeding before the Board which is not an inquiry into the merits of the investigation but an inquiry into whether or not the Act has been violated.
3The claim of the applicant is that overtime was not paid at the proper rates, but rather "banked" and paid at straight time rates at a later time. The difficulty was that neither he nor the employer kept a complete set of original documentary records. Thus, evidence would of necessity be oral evidence based on the recollection of other employees and the applicant, presumably contradicted by that of the employer and its witnesses.
4In that sort of dispute, expedition is important. Memories tend to fade over time. Hence, the applicant must establish a valid reason for taking a step which will inevitably prejudice the responding party.
5No such reason has been given. The applicant suggests he thought that speaking to the officer was sufficient to commence an "appeal". He suggests no reason for this belief. The officer's letter to the applicant denying his claim concludes with a section headed "EMPLOYEE'S RIGHT TO APPLY FOR REVIEW". The text below it does not appear on the copy attached to the application. Hand-written in ink on that copy is the statement "Was not picked up by my scanner". Since the letter has no indication that it was sent in any manner other than by ordinary mail, I conclude the following. The applicant received the letter in the ordinary course of mail delivery. He chose to scan it into a computer file and did not keep the original. Therefore, he either never read the instructions or paid no attention to them when he did.
6It is not the function of anyone to do more than advise an individual of his or her rights and permit him or her to pursue then as he or she sees fit. The Ministry properly relied on written communication which can be verified, rather than verbal communication which is susceptible to misunderstanding or the effect of fading memory. The applicant was given the advice he needed in a proper and timely fashion. He ignored it. He now seeks to be relieved of the consequences of his act. To do so would be to prejudice the employer.
7In these circumstances, there is no reason to extend the time for filing an application. This application is dismissed.
"David A. McKee"
for the Board