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 have a right to file a claim on line with the Ministry of Labour and without cost. You are protected from any consequences if you are exercising your rights under the Act. If the employer takes any action to penalise you because of it, the officer assigned to investigate your claim may consider it a reprisal, which has serious consequences.
If you are covered under the collective agreement, that is, if you are a member of the union, the terms of the Act do not apply to you.
It is possible you may not agree with the officer’s decision, if so, you have a right to appeal to Ontario Labour Relations Board. The Board is an independent body whose decisions are final and binding on both parties. It does not cost you money but you must request an appeal within 30 days. Likewise, the employer too can file an appeal against the officer’s decision. However, it may be required to pay the Ministry any amount found to be owing to you. This amount remains with the Ministry till the Board makes a decision. The Ministry then distributes the money to parties according to the Board’s decision.
Sometimes whether the employee has been fired or has resigned is not clear. Generally speaking for an employee to quit, two conditions should apply. (1) There must be a statement or intention to quit or an act clearly leading the employer to assume an intention to quit and (2) There must be some clear action by the employee that he/she is carrying out that intention.
1695-03-ES Mahmood Soltanpour v. Mohsin Khimji (Susan Serena)
The employee was employed since 1998 to perform accounting work. In March 2003, the employer instructed the employee to complete the journal entries and “close off the books” for the year 2002. The employee advised that 2002 books could not be closed because the 2001 books were not closed off. The two had a heated discussion as to how this can be done? The employee claimed at the end of the discussion, the employer told him to get out of the office and leave the things as they are. The employee told two of his co-workers that he has been fired and went home. The employer spoke to him on the phone and said, “I did not fire you, you quit”. The employee returned to the office to discuss the matter, he was told he has not been fired, the employee then indicated he would return to work, the employer told him, “no, you quit”. The employee claimed he was told to stay at home with pay till another position is found some place else for him to work. The employee responded he would rather work there and asked what could he do to get his job back? The employer repeated his assurance to find a job for him but indicated that he would not be allowed to work at his office. The employee then asked for record of employment for Employment Insurance purpose because he assumed either he has been fired or laid off.
The employer claimed that due to disagreement with the employee, he asked him to leave his office and go do the job. He claimed when he learnt the employee had gone home after telling his colleagues that he has been fired, he spoke to him on the phone that he has not been fired. When they met to talk about the issues, he told the employee that it would be better for him to work in a different environment because of their differences. The employer indicated that he was prepared to find a spot for him in another accountant’s office with the same pay doing the work for the same clients. Although, the employee was told to go home and think about the offer, he declined the offer immediately.
Note: The Act requires the employer to prove its case with evidence. Obviously, the parties disagreed about what took place and the employer was unable to support its position with evidence. Also, the two conditions for quit were not satisfied.
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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