If you are employed 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 a company must comply with. If it does not, you have a right to file a claim with the Ministry of Labour. If you are currently working for 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.
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.
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.
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.
If you have worked for the company for at least 3 months, the Act requires you must be given a written notice before your employment can be terminated. 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).
Generally speaking, 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 worked for less than 1 year but more than 3 months.
However, the Act requires the employer to give greater periods of notice if it has given 50 or more termination notices within a period of 4 weeks.
The length of notice:
# of weeks if the number of persons to be terminated at an “establishment”
850 to 199
12200 to 499
16 500 or more
An “Establishment” is defined as all locations within a municipality; and locations in other municipalities if one or more employees at a location of the employer within the municipality have a bumping rights to the location in question outside the municipality, for example; if a company has four plants in Toronto and one plant in Hamilton to which the employees in Toronto plants have the right to bump employees in Hamilton plant, in a situation like this, all plants belong to the same establishment.
Generally speaking, the Ministry counts all employees to be terminated whether or not they are entitled to notice of termination for the purpose of calculating number of weeks notice required under Mass Termination.
A termination of employment by virtue of bankruptcy (whether it is voluntary or involuntary), receivership or other insolvency is a termination of employment by the employer which entitles the employee to termination pay based on his period of employment. Termination under such circumstances may also entitle the employee to receive severance pay.
If the employer has terminated 50 or more employees within 4 weeks, it is also required to provide information on a prescribed form and post that information in the prescribed form at the employer’s establishment on the first day of the statutory notice period.
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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