The Employment Standards Act is the law that contains basic rules about employing people and working. Both employees and employers have rights and
responsibilities under the Act.
Does the Act cover all employees in Ontario?
Most employees are covered by the provincial legislation. However, employees working in industries that fall under Federal jurisdiction, such as, Post office, Banks, Railways, Radio stations, Airlines, Television stations etc. are not covered.
If you are member of the trade union and your contract of employment is governed by the collective agreement, you may not be covered by the Act.
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.
Section 11(1) of the Act states:
An employer shall establish a recurring pay period and a recurring pay day and shall pay all wages earned during each pay period, other than accruing vacation pay, no later than the pay day for that period.
The provision of this section requires the employer to establish a regular pay period and a pay day. It also requires the employer to pay all wages earned during this pay period on the pay day established except perhaps vacation pay. Of course, the employer can also pay vacation pay earned during this pay period at the same time other wages are being paid. However, it must be shown separately that the vacation pay is being paid.
The employer may establish regular pay day as weekly, bi-weekly, semi-monthly, monthly or any specified period. The employer may also establish different pay period and different pay day for different employee, that is, the employer may have a different pay period and pay day for employees who earn regular salary and those who earn commissions.
The employer is free to establish a new pay period and pay day. However, if the change affects the employee significantly regarding his wages or other terms of the contract of employment, the employee may claim constructive dismissal and thus termination under the Act. To avoid this possibility, the employer may wish to give proper notice before the change is implemented.
The Act provides that if a contract of employment provides greater benefit than required under the Act, the greater provision of the contract would apply rather than the minimum standards required in the Act. For example, if the contract of employment provides that the employee will be paid overtime while the employee is exempted for overtime under the Act, the employee would be entitled to overtime and the provisions of the contract would be enforced. If the employer fails to pay overtime to this employee, the Ministry would consider non-payment of overtime as unpaid wages. Also, the Act requires the employer to pay overtime after 44 hours/week; however, the employer may pay overtime after say 40 hours/week as provided in the contract, the employer cannot refuse to pay overtime after 40 hours/week, simply because the Act specifies 44 hours/week. If the employer contravenes the terms of employment contract, the employer would be considered to have violated the Act.
The employer must ensure that the terms of employment and the provisions of the Act are not breached. The onus is on the employer to prove that all these requirements have been met.
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 it is 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 represent the employee at the Board’s hearing to deal with the matter. It rarely does so now. Obviously, the employer has advantage over the employee in these circumstances. The question arises, should the employee also engage the services of a professional? It is my view, employee’s may not engage such services at the officer’s level hearing but may do so at the 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 employer’s evidence, otherwise, the officer or the referee may rely on the evidence of the employer to render a decision.
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.