This article was last updated on April 16, 2022
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What is the Employment Standards Act?
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.
Does the Act cover all employees in Ontario?
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 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 11(2) of the Act states:
An employer shall pay an employee’s wages,
(a) by cash;
(b) by cheque payable only to the employee; or
© in accordance with subsection (4).
This section clarifies how the employee’s wages are to be paid. The employer can either pay by cash or cheque payable to employee or by direct deposit to the employee’s account.
Allowances for room and board are defined as wages in the Act and are considered virtually equivalent to cash wages. The maximum amount for room and board that the employer can charge is specified in the Act. If the employer is taking in to account charges for the allowable amount for room and board, it must ensure that the total payment of room and board plus other payments must comply with at least the minimum wage requirement of the Act.
The contract of employment can include non wage forms of compensation, for example, food, bus or subway tickets or merchandise to an agreed value provided the minimum wage standards are met. However, provision of these benefits would be considered as a greater benefit and are not to replace the payment by cash or cheque for wages. In other words, provision of non wage benefit is between the employer and the employee and do not become statutory under the Act.
Section 11(3) of the Act states:
If payment is made by cash or cheque, the employer shall ensure that the cash or cheque is given to the employee at his or her workplace or at some other place agreeable to the employee.
This section requires that the payment of wages must be given to the employee at his workplace or at a place requested by the employee. It is the employee who decides where he or she wishes to receive his or her wages and not the employer. If the payment of wages is not made at the workplace, the employer must require in writing where the wages have to be made.
Section 11(4) of the Act states:
An employer may pay an employee’s wages by direct deposit into an account of a financial institution if,
(a) the account is in the employee’s name;
(b) no person other than the employee or a person authorized by the employee
has access to the account; and
© unless the employee agrees otherwise, an office or facility of the financial
institution is located within a reasonable distance from the location where the
employee usually works.
This section clarifies that the employer can pay wages in a manner different from cash or cheque and the requirement for making payment.
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.
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