If you are employed in the province of Ontario and the company falls under provincial jurisdiction, you may be covered under the Employment Standards Act, 2000. A legislation that sets minimum standards a company is required to comply with. If it does not, you have a right to file a claim with the Ministry of Labour against the company. If you are currently working for the company, you may be able to file a claim with a request that your name be not disclosed to the company. This legislation protects you when you are exercising your rights under the Act.
If you are member of trade union and work under collective agreement, you may not be covered under the Act. It is assumed the collective agreement would provide greater benefits than required under the Act. For any other issues, your collective agreement should provide a mechanism to resolve.
In the past, the Ministry was very aggressive in defending the rights of an employee and would send a legal counsel to the Board’s hearing to deal with the matter. Under present environment, it rarely does so. The employees and the employers are expected to arrange their own representative at the hearings whether at the officer’s or referee level. Obviously, the employer has advantage over the employee in these circumstances as it has more resources than the employee. The question arises, should the employee also engage the services of a professional to deal with these matters. It is my view, employee’s may not engage such services at the officer’s level hearing but may do so 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 evidence of the employer, otherwise, the officer or the referee may rely on the evidence of the employer to render a decision.
The Act requires that you must be given a written notice before your employment can be terminated, if you have worked for the company for at least 3 months. Your employment can be terminated for any reason (including no reason), except for pregnancy and parental leave and reprisals. It does not stop the employee from quitting, for any reason (including no reason).
The maximum notice required is 8 weeks, if you have worked for more than 8 years with the company and the minimum is 1 week, if you have been employed for less than 1 year but more than 3 months.
The notice of termination must be in writing. However, if the employer gives notice of termination verbally, which is greater than the minimum required under the Act, it may be acceptable provided the employee understands clearly that his job is being terminated. The onus of proof lies with the employer rather than with the employee.
If the employee works on and off for several periods of time, these consecutive periods are added together if they are separated by less than 13 weeks to determine his or her period of employment for the purpose of determining notice of termination. If the periods are more than 13 weeks apart, only the last one would determine notice of termination.
If the employee is offered a temporary work, the temporary period would be added to the period of employment for the purpose of calculating notice of termination. The period of employment includes when the employee is actively at work or on vacation or on lay off or on leave or any combination of these.
The employee must be given notice of termination in writing, addressed to each person whose employment is to be terminated, served personally or by registered mail. Personal service means, giving the notice document to the employee in person.
An employer may give a conditional notice of termination to an employee which states it will start if and when certain events occurs, providing the length of notice complies with the Act.
The party giving notice (termination by employer or resignation by employee) may not withdraw it unless the other party agrees to it to do so. 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 found to be owing. The referee decision is final and binding on both parties.
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.
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