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.
Sherry Roberts v. Creative Hair Design, February 23, 2000 (Albertyn) E.S.A.C. # 1583
The employee had worked for the employer for ten years starting as shampoo person and then becoming a hair stylist. In the month of September 1988, three incidents happened that led to her break up of ten years of employment relationship. Until that time there was no problem between the parties. In the first incident, the employee commented in front of the customer that the employee doing the cut was not qualified for the task. The next day, she scolded the same employee for not doing the job properly and then made a sarcastic comment to the employer. On Thursday of the next week, the employee booked an appointment for the employer without checking his schedule to see if he has any free time which he did not and then refused to call the client to cancel the appointment. The employer and the employee got into heated argument and the employer told her to “shut up”. The employee got angry and told the employer that she can’t take it anymore and finished the customer she was working on and stormed out of the shop. She drove around but was back for her next appointment and calmly told the employer that she would be resigning effective following Saturday.
On Sunday, the employee expressed the desire to take her resignation back. In a meeting on Monday, she tried to restore her employment relationship but without accepting any responsibilities for the recent incidents and wanted the employer to at least share the blame. The employer was willing to overlook these incidents provided she accepted her responsibilities in creating them, which she was unwilling to do. The employer under the circumstances decided that her resignation would stay.
The Ministry as well as the Board found that the employee indeed had resigned and therefore, not entitled to termination pay.
Note: This situation clearly demonstrates the two conditions were satisfied in order to consider it a quit. First, she clearly stated that she wishes to resign and then refusing to accept her responsibility for creating the difficulty thus satisfying the second condition. Regardless of the merit of employee’s difficulties, an employer cannot run his business if the employee creates a situation that is unacceptable. The employee was uncooperative as well as rude and created a situation of her own doing and then refusing to correct it.
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.
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