If you are employed 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 a company must comply with. If it does not, you have a right to file a claim with the Ministry of Labour. If you are currently employed with the company, you may be able to file a claim with a request that your name not be disclosed. The Act protects you when you are exercising your rights under it.
If you or the employer disagrees with the investigating officer’s decision, both parties have a right to appeal to Ontario Labour Relations Board within 30 days of the officer’s decision. The Board appoints a referee to hear the appeal. It does not cost the employee to request an appeal but the employer may be required to deposit monies in trust with the Ministry of Labour if found to be owing. The referee decision is final and binding on both parties.
In the past, the Ministry was very aggressive in defending the rights of an employee and would send a legal counsel to the Board’s hearing to deal with the matter. Obviously, the employer has advantage over the employee in these circumstances as it has more resources than the employee. The question arises, should the employee also engage the services of a professional to deal with these matters. It is my view, employee’s may not engage such services at the officer’s level hearing but may do so at the referee level hearing, particularly, if the issues are complex.
It is important that if a hearing has been scheduled, the employee must attend such a hearing to present evidence to support its position or to contest the evidence of the employer, otherwise, the officer or the referee may rely on the evidence of the employer to render a decision.
If you are employed for a definite term or task, you are not entitled to notice of termination because you would be aware of when your job will end and thus that will serve as your notice of termination.
“Term” means that both the employer and the employee have entered into an agreement that specifies the date on which the employment relationship will end. The term thus provides a definite date when the job will end and serves the same purpose as the requirement of a notice.
“Task” The employee would know that his or her employment will end when the job he or she was hired is completed. Again, it provides an understanding of the end of employment on the completion of a task for which the employee was hired and thus is exempted from the requirement of a notice of termination.
Example: If you were hired to check fixed number of electric bulbs for quality control purposes, you would know when you have completed your task and thus will have certainty of when your job will end.
Note: If the employment continues beyond the term or task or ends before the term or task is completed, the exemption would not apply from the requirement of notice or pay in lieu of notice for the fact that the employee no longer has the certainty when his or job would end.
Following questions would help in the understanding of this exemption:
Q1. If the employee has been hired for the definite term of 6 months but was terminated after 4 months, does the exemption to the requirement of notice apply in this situation?
A1. No, the exemption would not apply because the employee lost the certainty of when the job will end.
Q2. Can the employer put the employee already working on definite term or task to avoid giving him or her notice of termination?
A2. The employer cannot arbitrarily change the contract of employment without first complying with the notice requirement. In other words, the employer first give notice of termination based on employee’s period of employment and then change his or her contract of employment. Thus the employer is not allowed to deny the employee his or her entitlement.
Q3. An employee who has been employed for over 8 years agrees to go on a 4 week term contract, the employer then terminates his employment. Does the exemption apply in this situation?
A3. No, the exemption does not apply even though; the employee agrees to go on a definite term of 4 weeks. Under the Act, the agreement of the employee becomes void since it violates its requirements. The employee is entitled to addition 4 weeks of pay in lieu of notice.
This information is provided for guidance only 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 firstname.lastname@example.org
If you don’t have access to e-mail; you can fax your question at (905) 331-1805.