3333-00-ES The Regional Group of Companies, Applicant v. Jim Bowser et al and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 20031013
BEFORE: Mary Ellen Cummings, Alternate Chair
DECISION OF THE BOARD; August 9, 2001
This is an employer appeal of an Employment Standard’s Officer’s Order to Pay, dated January 22, 1996.
The case has a very long history which I will only summarize. An Officer made a determination that around 25 real estate appraisers were employees of The Regional Group of Companies (the employer) and not independent contractors, with the result that the Employment Standards Act governed their terms and conditions of employment. The Officer further found that vacation pay was owing to those employees. Two Orders to Pay were issued, one affecting Tom Quinn (and another employee, whose claim was later settled), and another affecting the remaining employees.
The employer made an arrangement with the Director, Employment Standards that permitted the employer to seek review of the Order to Pay concerning Mr. Quinn. Once that decision was released, the employer could make an application to review the order concerning the remaining employees if it wished to and its application would be considered timely.
An inordinate period of time passed, in large part because the Referee/Adjudicator assigned to hear the Quinn matter was not able to complete the proceeding. The Board reassigned the matter, and the decision in the Quinn matter was released on January 23, 2001. The employer then made a timely application with respect to the order to pay affecting the other employees.
That matter was assigned to a Labour Relations Officer to endeavour to effect a settlement. The process was somewhat complicated by the long passage of time. A number of employees have changed addresses and the efforts of both the Board and the Ministry of Labour (on behalf of the Employment Standards Branch) in locating them have not been successful. The Labour Relations Officer convened meetings with employees who could be located, and ultimately the employer and the employees who participated reached Minutes of Settlement on May 18, 2001. The Ministry of Labour does not have any objection to the proposed Minutes of Settlement.
I have attached the whole of the Minutes as an Appendix at the end of the decision, but they can be summarized as follows. The employees who have participated in the proceeding and the mediation efforts will receive half of the amount of vacation pay the Officer found owing. Those employees will also receive half of any interest earned on the monies which have been held in trust by the Director, Employment Standards, since February 2001. The employees who did not participate in the proceeding (which includes employees who have not been located) will receive 25% of the amount that the Officer found owing to them, and 25% of any interest that has accumulated. The remaining monies, will be returned to the employer. This decision will be sent to the last known address of those employees.
If any employee who has not participated in the settlement efforts wishes to object to the Minutes of Settlement, they must do so, in writing, within 21 calendar days of the date of this decision. The letter should set out the reasons for the objection, and be sent to the attention of the Registrar, quoting the file number, at the Board’s address, set out on the covering letter. If the Board receives objections, it will schedule a hearing to deal only with those objections. If no objections are received, the Board will issue a decision, confirming the Minutes of Settlement, and directing that the Director, Employment Standards, pay out the monies in accordance with the Minutes of Settlement.
The Registrar is directed to place this matter before this panel of the Board when the objection period ends.
“Mary Ellen Cummings”
for the Board
EMPLOYER/DIRECTOR APPLICATION FOR REVIEW
RE: ONTARIO LABOUR RELATIONS BOARD FILE NO: 3333-00-ES
20031013
IN THE MATTER OF AN APPLICATION FOR REVIEW
UNDER SECTION 68 OF THE EMPLOYMENT STANDARDS ACT, R.S.O. 1990, c.E. 14, as amended
BETWEEN:
THE REGIONAL GROUP OF COMPANIES INC.,
(the "Employer")
- and -
THOSE EMPLOYEES LISTED IN APPENDIX 'A',
(the Employees")\
- and-
THE MINISTRY OF LABOUR
MINUTES OF SETTLEMENT
WHEREAS the Employer has applied for a review of Order to Pay # 32006 dated January 22, 1996;
AND WHEREAS in order to resolve this matter, the Employees and the Employer have agreed to a resolution in accordance with the Appendix 'B' Minutes of Settlement;
AND WHEREAS the Ministry of Labour does not represent the Employees, but has no objection to the Appendix 'B' Minutes of Settlement;
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NOW THEREFORE THE PARTIES AGREE AS FOLLOWS:
- The Ministry of Labour shall immediately disburse the sum of $78,983.91 paid to the "Director in Trust", as follows:
(a) to be paid to the Group I employees listed in Appendix 'B', the sum of $35,108.25 in accordance with the terms of Appendix 'B';
(b) to be paid to the Employer, the sum of $39,491.96;
(c) to be retained by the Government of Ontario, Consolidated Revenue Fund, 50% of the administrative fee of $8,767.41 paid by the Employer, or the sum of $4,383.70;
(d) interest earned on the monies held in trust in this matter is to be paid to the above parties in proportion to the amounts paid out.
- The remaining funds of $17,457.55 shall be paid out upon the release of a final decision by the Ontario Labour Relations Board as set out in para. 3 below. (By way of example, in the event no objections are received in accordance with para. 3 below, then the Ministry shall immediately pay to the Employer 75% of $17,457.55 or the sum of $13,093.16 and the remaining 25% of $17,457.55, or
$4,364.39 to the Group II employees listed in Appendix 'B' in accordance with the terms of Appendix 'B'.
- The parties agree to request that the Ontario Labour Relations Board issue a decision (the "Consent Decision") incorporating these Minutes of Settlement and that such decision direct the Registrar to forward the decision to the Group II employees listed in Appendix 'B' to their last known address. If any Group II employee has any objection to the proposed resolution, she/he must inform the Registrar in writing with reasons, within two (2) weeks of receipt of the Consent Decision, quoting Ontario Labour Relation Board File #3333-00-ES. If no written objections are received by the Registrar within that time frame, the resolution which has been outlined in these Minutes of Settlement and in the Ontario Labour
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Relation Board's Consent Decision shall be incorporated into a final Decision of the Ontario Labour Relation Board and will be determinative of this matter.
In the event that objections are received by the Group II employees, then the Registrar shall schedule a hearing to decide only upon such objections.
SIGNED at Ottawa this 18th day of May, 2001.
per: "S. Gordon" Pres.
THE EMPLOYER, (THE REGIONAL GROUP)
"M. Shore" "J. Bowser"
Mark Shore Jim Bowser
"Nick Van Walraven" "Margot Mann"
Nick Van Walraven Margot Mann
"Harold Thompson" "Keith Van Walraven"
Harold Thompson Keith Van Walraven
"Jack Van Walraven" "Don Munro"
Jack Van Walraven Don Munro
"G. Stephens" "J.A. Clark"
Graeme Stephens John Clark
"Robert Caven"
Robert Cayen
"G. McGrath"
The Ministry of Labour
Appendix 'B' MINUTES OF SETTLEMENT
I Group of Employees present or deemed present on May 17, 2001 and who are to receive 50 cents on the dollar on the amount of their Claim ("Group I"):
Full Amount of Claim
to be reduced by 50%
Mark Shore $12,836.81
Jim Bowser $ 5,005.92
Nick Van Walraven $10,562.40
Margot Mann $ 998.61
Harold Thompson $ 3,639.68
Keith Van Walraven $ 6,999.97
Jack VanWalraven $ 3,557.42
Don Munro $ 2,974.93
Graeme Stephens $ 4,342.90
John Clark $ 9,313.23
Robert Cayen $ 9,984.63
II Group of Employees NOT present and who are to receive 25 cents on the dollar on the amount of their Claim ("Group II")
Full Amount of Claim
to be reduced by 75%
Terry Egan $ 585.13
Edward Osman $ l8.18
Don Raymond $2,249.34
Charles Bailey $ 217.99
Mark Shank $1,617.93
Ursula Bates $7,665.67
Mireille Beebe $2,516.32
Robert Helal $ 13.48
Rodney Helal $ 102.97
Patrick Kelley $1,172.45
William Kennedy $ 361.07
Lois Purchase $ 923.21
Paul Scully $ 11.80
DATED at Ottawa this 18th day of May, 2001 and signed by the Group I Employees:
“Mark Shore”
Mark Shore
"Jim Bowser"
Jim Bowser
"Nick VanWalraven"
Nick Van Walraven
"Margot Mann"
Margot Mann
''Harold Thompson”
Harold Thompson
"Keith VanWalraven"
Keith Van Walraven
"Jack VanWalraven"
Jack Van Walraven
"Don Munroe"
Don Munroe
"Graeme Stephens"
Graeme Stephens
"John Clark"
John Clark
"Robert Cayen"
Robert Cayen
FOR THE EMPLOYER
per "S. Gordon" per
THE REGIONAL GROUP
FOR THE MINISTRY OF LABOUR
per "G. McGrath"