This article was last updated on April 16, 2022
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What is the Employment Standards Act?
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 36(1) of the Act states:
Subject to subsection (2) and (4), the employer shall pay vacation pay to the employee in a lump sum before the employee commences his or her vacation.
This section would apply to employees who receive their wages other than a regular salary. For employees on regular salary, the salary continues to be paid while they are on vacation. For others, the requirement is that they be paid their vacation pay before they start their vacation subject to subsection 2 and 4. It does not specify when to pay vacation pay as long as it is paid before the vacation starts.
Section 36(2) of the Act states:
If the employer pays the employee his or her wages in accordance with subsection 11(4) or the employee does not take his or her vacation in complete weeks, the employer may pay the employee his or her vacation pay on or before the pay day for the period in which the vacation falls.
Section 11(4) of the Act states:
An employer may pay an employee’s wages by direct deposit into an account of a financial institution if,
(a) the account is in the employee’s name;
(b) no person other than the employee or a person authorized by the
employee has access to the account; and
© unless the employee agrees otherwise, an office or facility of the
financial institution is located within a reasonable distance from the location where the employee normally works.
Section 36(3) of the Act states:
The employer may pay the employee vacation pay that accrues during a pay period on the pay day for that period if the employee agrees that it may be paid in that manner and,
(a) the statement of wages provided for that period under subsection 12(1) sets
out, in addition to the information required by that subsection, the amount of
vacation pay that is being paid separately from the amount of other wages
that are being paid; or
(b) a separate statement setting out the amount of vacation pay that is being paid
is provided to the employee at the same time that the statement of wages is
provided under subsection 12(1)
Section 36(4) of the Act states:
The employer may pay the employee vacation pay at a time agreed to by the employee.
This section provides the flexibility to the employee that he or she may be paid his or her vacation pay at a time to his or her choosing than required under the Act.
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.
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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