If you work in the province of Ontario and the company falls under its jurisdiction, you are covered under the Employment Standards Act, 2000. This Act sets minimum standards that an employer must comply with. If the employer fails to do so, you can file a claim with the Ministry of Labour against the company. The employee can file a claim on-line and it does not cost any money. If you are still working for the company, you can file a claim with a request that your name should not be disclosed to the employer. If you are not currently working for the company, it should not matter whether the employer knows your name. Some standards are so unique that they cannot be investigated without identifying you. The officer assigned to your file would advise you whether or not your complaint can be investigated without identifying you. The Act protects you if you are trying to exercise your rights and if the employer takes steps to penalise you because you have approached the Ministry, the officer assigned to your file is empowered to prevent the company from taking such an action and if the company is hell bent on penalising you, the officer can impose additional penalties on the company.
There are times when you may not agree with the officer’s decision, in that case, you have a right to appeal the officer’s decision to Ontario Labour Relations Board. It does not cost you money to request an appeal but you must do so within 30 days. Likewise, the employer too can file an appeal against the officer’s decision. However, it may be required to pay the Ministry any amount found to be owing to you by the company. This amount remains with the Ministry till the final decision of the Board. The Ministry then gives the money in accordance with the Board’s decision. There is no further appeal allowed. The Board’s decision is final and binding on both parties.
In the past, the Ministry used to defend the officer’s decision at the Board’s hearing, however, it is rarely done now in the name of cost cutting. The Ministry used to go to extra length to safe guard the interests of an employee even in some cases against its own officer. Such happenings are very rare. At the present time, under most situations, the Ministry takes no stand and lets the employer and the employee deal with the issues themselves before the Board. The consequences of Ministry’s non-involvement in such matters leave the employee in a very disadvantage position. Unfortunately, the Ministry’s actions defeat the very purpose for which this Act was created. The employer has more resources than the employee and the Ministry’s intervention on behalf of the employee used to negate that advantage of the employer. It is up to the employee now to defend its interests.
The question arises, should the employee also engage the services of an expert in these matters? It is my view that in most cases it is not necessary at the initial investigation by the officer. However, if the issues are serious and complex, the employee may wish to engage these services at the appeal process.
When the employment relationship ends, it happens because the employee may decide to quit or is fired by the company. If the employee has been fired, he/she may be entitled to proper notice or pay in lieu of notice unless the exception to the entitlement applies. To understand these exceptions, the employee may wish to contact the Ministry for clarifications or the writer, who is a retired Employment Standards Officer. One need not accept the explanation provided by the employer. If the employee resigns, he/she may resign because of better position somewhere else, in this case, the employee is not entitled to anything and is not required to give notice under most situations However, the employee may also resign because his/her contract of employment has been changed by the employer without consent. If you find yourself in such a situation, you may agree to a change or you may decide to resign. If you agree to a change voluntarily, nothing happens. If you do not agree to changes, you may resign and if the changes made are significant, consider yourself to have been terminated. Resignation under such circumstances is considered constructive dismissal. You would then be entitled to notice or pay in lieu of notice. If you are not sure if the changes made are significant, it is best to seek guidance from outside including the Ministry or the writer.
Under the Act, the employer can terminate the employment of an employee for any reason, what is required is that the employee must be given proper notice or pay in lieu of notice. There is no such thing as wrongful dismissal. The entitlements under any type of termination, that is, whether it is wrongful or constructive, is the same. The entitlement depends on the length of service. The maximum notice required is eight weeks if the period of employment is more than eight years. For the first three months of employment, your employment can be terminated without notice. If you happen to work for a company whose payroll is more than $2.5 million and you have worked for five or more years, you would also be entitled to severance pay in addition to notice or pay in lieu of notice. The severance pay is one week for each year of service, maximum of 26 weeks.
The employee must consider whether to pursue his/her claim through small claims court or through the Ministry of Labour. The complaint under the Act is free of cost to the employee while it would cost the employee money to go through small claims court. Another factor to consider is even if you win in small claims court, you still have to collect the judgement and some employers are not easy to collect from. On the other hand, the Ministry has the power to take additional steps against the employer if it does not comply with its decision.
To get a better picture of the situation regarding constructive dismissal, following cases would help. These cases were referred to the Board for decision:
Ramjit V. GHL Promotions Inc. (12 December 2003) 1159-03-ES (Sargeant)
The employee was employed as an accountant since March 2001. The employer offered him a position of Contract Verification Officer (CVO) in August 2002. The employee accepted the position with a condition that he would not have to deal with a “club president” and that he would return to his previous position if he did not like the new job. The employer confirmed in writing that it is not a permanent position unless he makes it so.
The employee started his new position on August 20, 2002 and his job required him to deal with the club president. The employee complained to the employer that he is having difficulties with the set up because the club president was harassing and abusing him.
The employer gave him a raise of $5,000.00 in October 2002 with the clear understanding that he had accepted the position of CVO on a permanent basis. The employee denied having accepted the position on a permanent basis and stated nothing was put in writing.
On November 4, 2002, the employee upset with the harassment by the club president informed the employer that he wished to go back to his old position. The employer advised the employee that he had accepted the new position when he was given a raise in October and that there is no position to return to.
The employee resigned his position on November 15, 2002 claiming constructive dismissal.
The Ministry agreed with the position of an employer and denied his claim. The employee appealed the officer’s decision to Board. The Board considered all the facts and found that the employee was indeed constructively dismissed. The Board ordered the employer to pay termination pay.
This case clearly shows how Ministry and the Board interpret constructive dismissal? It also demonstrates that the employee does not have to accept the Ministry’s decision. It did not cost the employee anything to request a review of the officer’s decision.
Podlesny V. St. Thomas-Elgin General Hospital (15 January 2004), 0572-03-ES (Wacyk)
The employer hired the employee in 1992 as a physiotherapy resident and later transferred him to the position of a “staff physiotherapist” in the rehabilitation services department. The job specified that physiotherapist is expected to provide services in three major clinical areas: orthopaedics, neurology and cardiopulmonary care. Initially, the employee mostly provided orthopaedics physiotherapy services with occasional services in the other two areas when required. However, one physiotherapist left and the service was reorganized which resulted in the employee being required to perform services in orthopaedics as well as in neurology.
The employee claimed that he was not particularly, trained to provide services in neurology and also did not have enough time to provide additional services. The employer tried to address these concerns by providing additional resources to manage his workload. The employee rejected these proposals of extra help and advised the employer that he would resign and claimed constructive dismissal.
The employee’s hours of work did not change nor anyone complained about the quality of his work.
The Ministry in its investigation rejected his claim of constructive dismissal, as there was no change in his hours of work or his salary. His duties required him to provide services in three different areas and he was asked to do so in two areas out of these three.
The employee appealed the Ministry’s decision to the Board. The Board looked at all the facts of the case and agreed with the Ministry’s decision that no constructive dismissal took place in this case. The employee’s claim was rejected.
This case too demonstrates how constructive dismissal is interpreted under the Act. It also shows that the appeal of the Ministry’s decision does not always results in employee’s favour.
The Board is an independent body and takes into consideration all the facts of the case. Its decision is final and binding on both parties.
This information is only provided to guide you about your entitlements under the Employment Standards Act, 2000 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 [email protected]
If you don’t have access to e-mail; you can fax your question at (905) 331-1805.
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