Reprisal

If you work in the province of Ontario and the company falls under its jurisdiction, you may be covered under the Employment Standards Act, 2000. The Act sets minimum standards that an employer is required to follow. If it doesn’t, you can file a claim with the Ministry of Labour. If you are still working for the company, you may be able to file a claim without disclosing your name. The Act protects you if you are trying to exercise your rights.
 
If your employment relationship is governed by the collective agreement and you are a member of the trade union, the provisions of this Act do not apply to you. It is assumed that the collective agreement would provide greater benefits than the minimum standards of the Act. If there are issues to be resolved, it is expected, the collective agreement will provide a mechanism to resolve those issues.
 
The employers are prohibited from penalizing employees in any way for:
 
            .           asking the employer to comply with the ESA and the regulations
            .           asking questions about rights under the ESA
            .           filing a complaint under the ESA
            .           exercising or trying to exercise a right under the ESA
            .           giving information to an employment standards officer
            .           taking, planning on taking, being eligible or becoming eligible for a parental, pregnancy, personal emergency, declared emergency, family medical, or reservist leave.
            .           being subject to a garnishment order (i.e., to have certain amount deducted directly from wages to satisfy a debt)
            .           participating in a proceeding under the ESA
            .           participating in a proceeding under section 4 of the Retail Business Holiday Act  (regarding tourism exemptions that allow retail businesses to open on holidays)
            .           refusing to take a lie detector test
            .           refusing Sunday work (for certain retail workers only)
 
An employer that does penalize an employee for any of these reasons can be ordered by an employment standards officer to:
 
            .           reinstate an employee to his or her job
            .           compensate an employee for any loss incurred because of a violation of the ESA
            .           pay the employee any wages that may be owing.
 
There may come a time when you or the employer disagree with the officer’s decision, in that case, both parties have a right to appeal the officer’s decision to Ontario Labour Relations Board within 30 days. It does not cost you money to request an appeal but the employer may be required to pay money to the Ministry if it is found to be owing. The Ministry distributes the money in accordance with the referee decisions. The Board’s decision is final and binding on both parties.
 
It is important that you must attend any hearing called to deal with your claim. If you fail to do so but the employer attends, you not only lose the chance to submit evidence to support your position but also miss a chance to challenge employer’s evidence. The officer or the referee may accept the employer’s evidence and make the decision on that basis. 
 
An employee of the GTA Cellular Express filed a claim with the Ministry of Labour against the company for terminating his employment because he approached the Ministry for his rights under the Act. The officer found his claim has merits and ordered the employer to pay compensation. The employer disagreed and appealed to Ontario Labour Relations Board.
 
The Board appointed Peter F. Chauvin as a referee to hear the case and make a determination. 
 
The claimant was paid $10.00/hour as a telemarketer and from time to time received monthly bonus. Although, the contract stated he would be paid bonus at the discretion of the employer, he came to regard it as a part of his commission. When he did not receive his bonus, he called the Ministry of Labour about his entitlement and told the employer about his enquiry to the Ministry.
 
The employer did not appreciate his contacting the employer and terminated his employment sometime later claiming his services are no longer required. He asked his colleague to finish the work the claimant was in the process of doing.
 
The employer denied terminating his employment because he had contacted the Ministry of Labour but the referee found the evidence clearly supports the claimant’s claim. The referee found the claimant and his witness were more credible than the employer and his manager. He accepted their evidence over that of the employer. He confirmed the officer’s Order to Pay against the employer. 
 
This case clearly shows that the employer cannot penalize the employee for contacting the Ministry about his rights under the Act.    
 
This information is provided for guidance and should not be considered as a legal advice.

This article is provided by Rajinder K. Batra, who is a retired Employment Standards Officer with the Ministry of Labour with 15 years experience in these matters.

If you have any questions regarding your employment, please contact the writer by e-mail at esaconsulting@hotmail.com

If you don’t have access to e-mail; you can fax your question at (905) 331-1805.

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