Continuity of Employment in Ontario (New Building Services Provider)

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.

 

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 10(1) of the Act states:

 

This section clarifies that if a service provider (such as cleaning service etc.) for a building is replaced by a new service provider and this new service provider retains the employee of the previous service provider, the employment of the employee would be deemed to be continued, that is, the employee’s period of employment with the previous service provider would be added to the period of employment with the new service provider for the purpose of calculating his or her entitlements under the Act.

 

 

The terms “building services” and “building services provider” are defined as:

 

“building services” means services for a building with respect to food, security and cleaning and any prescribed services for a building;

Section 10(1) applies if the following conditions are met:

 

     (a)     The former building service provider is replaced by a new provider.

     (b)     An employee of the replaced provider is employed by the new provider.

 

In order for this condition to be met, the new and previous service provider must be providing the same services for the building. However, if the new contractor is also providing other services in addition to the replaced contractor’s services, this provision would not apply.

 

This condition would be met if the new service provider employs the employee of the replaced service provider subject to certain conditions. The details of these conditions would be provided upon contacting the writer.

 

These provisions only apply if the new service provider falls under provincial jurisdiction as was the replaced service provider.

 

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.