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 13(1) of the Act states:
An employer shall not withhold wages payable to an employee, make a deduction from an employee’s wages or cause the employee to return his or her wages to the employer unless authorized to do so under this section.
This section clarifies that the employer is prohibited from the following:
. withholding wages that an employee has earned;
. making a deduction from an employee’s wages;
. causing the employee to return his or wages to the employer, except where the
employer is permitted to do so under this section.
The purpose of this section is simply to protect the employee’s wages and not allow the employer to arbitrarily withhold wages or make unauthorized deductions from his or her wages that the employee has earned or to force the employee to return his or wages for some perceived reasons. However, the employer is permitted to make deductions if the statue allows it or if the court requires it. The employer may also make deductions if the employee provides a written authorization to the employer that a certain fixed amount or based on agreed upon criteria can be deducted from his or her wages. The emphasis is on written authorization and agreed upon amount. Also, the employee agrees into this on a free will and was not forced to agree as a condition of his or her employment.
If the agreement between the employer and the employee is not voluntary or not in writing, the agreement is null and void. This means the employer made the deduction without the consent of the employee.
Section 13(2) of the Act states:
An employer may withhold or make a deduction from the employee’s wages or cause the employee to return them if a statute of Ontario or Canada or a Court order authorizes it.
This section clarifies under what conditions the employer is permitted to make the deductions from the employee’s wages. This specifies if the Ontario or Canada statute allows it, the employer can make the deduction. This also permits the employer to withhold wages if the court directs it to do so. The employer is not required to have authorization under these circumstances.
Section 13(3) of the Act states:
An employer may withhold or make a deduction from an employee’s wages or cause the employee to return them with the employee’s written authorization.
This clarifies that if the employee gives written authorization to the employer, the employer can make the deduction. The authorization must be for the fixed amount or some other criteria that agreed by the parties. The authorization cannot be general for the employer to make the deduction.
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.
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