Temporary Lay-Off

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 must comply with. If the employer fails to do so, you can file a claim on line and without cost to you with the Ministry of Labour against the company. If you are still working for the company, you may be able to file a claim with a request that your name should not be disclosed to the employer. If you are currently not working for the company, it should not matter whether the employer knows your name. Some standards are so unique that they cannot be investigated without identifying you. The officer assigned to your file would advise you whether or not your complaint can be investigated without identifying you. The Act protects you if you are trying to exercise your rights and if the employer takes steps to penalise you because of it, the officer is empowered to prevent the company from taking such an action and if the company is hell bent on penalising you, the officer can impose additional penalties on the company.
 
There are times when you or the employer may disagree with the officer’s decision, if so, both parties have a right to appeal the officer’s decision to Ontario Labour Relations Board. It does not cost the employee any money to request an appeal but the employer may have to pay the money to the Ministry to be kept in trust if money is found to be owing. The appeal by either party must be requested within 30 days of the officer’s decision. The Ministry then distributes the money in accordance with the Board’s decision. The Board’s decision is final and binding on both parties.
 
In the past, the Ministry would defend the officer’s decision at the Board’s hearing; however, it is rarely done now in the name of cost cutting. The Ministry used to go to extra length to safeguard the interests of an employee even in some cases against its own officer. Such happenings are very rare. At the present time, under most situations, the Ministry takes no stand and lets the employer and the employee deal with the issues themselves before the Board. The consequences of Ministry’s non-involvement at the Board’s hearing have placed employees in a very disadvantageous position. Unfortunately, the Ministry’s actions defeat the very purpose for which this Act was created. The employer has more resources than the employee and the Ministry’s intervention on behalf of the employee used to negate that advantage. It is up to the employee now to defend its interests. If an appeal is requested, it is important that the employee attends the hearing and gives evidence in support of his or her position. If the employee fails to do so, the referee may accept the employer’s evidence and render his or her decision based on that evidence.
 
Sometime, the question arises, should the employee also engage the services of an expert in these matters? It is my view that in most cases it is not necessary at the initial investigation by the officer. However, if the issues are serious and complex, the employee may wish to engage such services at the appeal process.
 
There are times when the business is down and the employer may decide to lay off some employees during this period. The Act allows the employer to lay off employees up to 13 weeks in 20 weeks of continued employment without having to provide fixed return date.
 
If the employer does not recall the employee in 13 weeks, the employee is considered to have been terminated from the date of lay off. He or she is thus entitled to termination pay and may be severance pay based on his or her period of employment.
 
The employer may recall the employee within 13 weeks and after few weeks again lay him or her off. The 13 weeks layoff would start again. The employer can continue this cycle as long as lay off does not exceed 13 weeks.
 
The employer may be able to lay off an employee for a period longer than 13 weeks, if the Director of Employment Standards Program approves it or up to 35 weeks in 52 consecutive weeks, if the benefits are continued during lay off.
 
This information is only provided to guide you about your entitlements under the Employment Standards Act, 2000 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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