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 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(5) of the Act states:
If an employee’s employment ends, the employer shall pay any wages to which the employee is entitled to the employee not later than the later of,
(a) seven days after the employment ends; and
(b) the day that would have been the employee’s next pay day.
This requires that when the employee’s employment ends, he or she must be paid all wages, including termination pay, severance pay, vacation pay, and public holiday pay, regular wages etc. to be paid within 7 days. In other words, any wage entitlements owing to an employee whose employment has ended must be paid out no later than 7 days after his or her employment has ended with the employer. This provision provides a choice to the employer when to pay wages but also sets a deadline. The flexibility of when to pay allows the employer to use its regular system of payment of wages, that is, pay day if the employer has a computerized payroll system rather than having to cut a manual cheque to make the final payment to the employee.
Note: Pay day referred to in paragraph (b) is not necessarily the pay day that covers the period to the date of termination, but is rather the very next pay day to fall after the employment ends.
. Employee’s employment is terminated on January 22.
. Employee is paid on a semi-monthly basis. The employee would be paid on Jan 31 for wages earned in the period Jan. 1 to Jan. 15 and paid wages earned in the period Jan. 16 to Jan. 31 on Feb. 15, that is, pay period that would have included Jan. 22 would be Feb. 15.
. The employee is entitled to payment of any outstanding wages on the date the later of:
. 7 days after the termination date – Jan. 29 (7 days after Jan. 22) and
. the next pay day – Jan. 31.
The employee will be entitled to all outstanding wages on Jan 31 (not Feb. 15)
It does not relieve the employer in any way of its obligations to pay wages earned in any given pay period on the regular pay day for that period.
. Pay day for the pay period is Oct. 2.
. Employee is terminated on Sept. 30 (i.e., after the pay period is completed but
prior to the pay day for that pay period).
Under section 11(1), the employer still must pay his or her wages earned till Sept. 25 on Oct. 2.
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.