Area of Law: Employment Law
Answer # 1687
Employment Standards: complaints and enforcementRegion: Ontario Answer # 1687
It is important for both employers and employees to understand their rights and responsibilities. In Ontario, the rights and responsibilities of employees and employers are governed by the Employment Standards Act (ESA). The Act covers such topics as minimum wage, vacation, hours of work, termination of employment, public holidays, pregnancy and parental leave, severance pay, and more.
What is Employment Standards Enforcement?
The enforcement of employment standards is a significant aspect of labor relations in Ontario, ensuring that both employees and employers abide by the law. The Ontario Ministry of Labour administers the ESA and enforces it through employment standards officers. These officers have a wide range of authority, including the power to:
- Inspect workplaces for compliance
- Enter premises without a warrant
- Investigate complaints and order employers to produce records
- Interrogate individuals involved in inspections or investigations
- Convene fact-finding meetings
- Issue orders to pay and compliance tickets
- Order employers to conduct self-audits and report findings
How can an employee file a complaint?
If an employee believes their employer has violated the ESA, they can file a complaint with the Ministry of Labour. Complaints may be of a monetary nature, for example not being paid overtime, or of a non-monetary nature, such as not being given appropriate rest periods.
The process begins with completing a claims form, which encourages the employee to contact their employer and attempt to settle the claim. The Ministry will draft a notice of claim based on the completed form, which is then sent to the employer.
- Settlement Procedures and Fact-Finding Meetings
Upon receiving the notice of claim, the employer is required to complete an employer information form. A fact-finding meeting then usually takes place. In this meeting, both parties present relevant documents and witnesses. The meeting is not a formal hearing; however, the officer may question attendees if necessary. Cross-examination between the parties is not allowed. Following the meeting, the officer may render a decision immediately or choose to withhold judgment and contact the parties at a later time. If a violation of the ESA is found, the employer is usually given the opportunity to voluntarily settle the outstanding amount. In the event that the employer does not agree, the officer will issue an order to pay, which includes a 10% administration fee. Since February 20, 2015, there is no maximum limit on the amount determined by the officer.
- Challenging an Order to Pay
If an employer wishes to contest an order to pay, they must deposit the ordered amount in trust with the Director of Employment Standards and file an application for review with the Ontario Labour Relations Board. The Board sets a hearing date, during which the parties present evidence through documents and witnesses. The Board then adjudicates the dispute based on the evidence and relevant ESA sections.
- Fines and Penalties
Employment standards officers have the authority to issue fines and penalties against employers who contravene the ESA.
Specifically, employers can be:
- ordered to comply with the ESA
- ordered to pay their employees
- ordered to pay a penalty
How can employers comply with the ESA?
To ensure compliance with the ESA and avoid fines, employers should adopt the following best practices:
- Maintain and store complete records of payments to all employees.
- Provide written offers of employment or employment agreements that explicitly disclose all terms of employment and expectations.
- Refrain from making promises during job interviews.
- Avoid speaking in generalities about the job during interviews.
- Present the job offer or employment agreement to the candidate before they start work.
- Attach company policies to and incorporate them into offers of employment and employment agreements.
- Obtain signatures on all relevant documents.
- Use a probationary period to assess not only the employee’s performance but also their compatibility with the company culture.
- Set measurable standards of performance.
- Make timely written assessments of employees’ performance.
- Warn employees in writing if dissatisfied with their performance or if they need to correct their conduct.
- Enforce policies and codes of conduct consistently and even-handedly.
If you require further assistance or representation, consult with Roberts & Obradovic who can provide expert guidance and support throughout the process.
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