A No Cost Process for Claiming Damages If You Are Fired for Asserting Your Employment Rights

Aug 25, 2017

If you are punished for asking your employer to comply with the Employment Standards Act there is a no-cost complaint process available to you. In particular, you can file a complaint with the Ontario Ministry of Labour and an Employment Standards Officer will investigate your claim at no cost to you.

Riverdale Hospitality Inc. v. Markos Tadesse Essayas, 2017 CanLII 8340 (ON LRB) is a recent case that provides a good example of how a short-term employee earning a low wage can pursue their rights through the Ontario Ministry of Labour instead of through the courts.

The Case

Markos Essayas was an employee for Riverdale Hospitality Inc, a valet and limousine service. He was hired on October 4, 2015 as a valet driver and earned $11.25 per hour. At the time he was hired he was told that he would be a full-time employee and would work approximately 40 hours per week. In October and November Mr. Essayas asked to be paid overtime and received a cheque for overtime pay within a week of his request. However, when Mr. Essayas asked for overtime payment in December 2015, his hours began to drop. His weekly hours from October 12 to December 27 were 40, 38, 48, 48, 47, 54, 48, 37, 48, 8, and 12.  When he asked for overtime in December 2015, he only received a cheque dated January 15, 2016 which was included with his letter of termination dated January 11, 2016. Mr. Essayas argued that the last two weeks were the period of reprisal, which ultimately led to his termination.

The Decision

Section 74 of the Employment Standards Act prohibits employers from penalizing employees who ask their employer to comply with the Act. Under Section 74, there is a reverse onus clause which means the employer must prove that they did not punish the employee. In this case, the employer did not discharge its onus that it acted without reprisal. The Board rejected the employer’s explanation for the dramatic reduction in Mr. Essayas’ hours. The Board refused to accept the employer’s evidence that Mr. Essayas was not a full-time employee, that he received two disciplinary warnings, and that he intended to quit when he did not attend a mandatory training program. The Board also rejected the evidence that the employer had a “seniority list” to determine which employees would be scheduled during slower periods of business.

The Board awarded Mr. Essayas $765.00 for his wage loss (i.e what he would have earned had he been scheduled for shifts in December). They also awarded Mr. Essayas $495.00 for lost income to search for new employment and $500.00 for the breach of the reprisal provisions of the Act. The Board declined to award damages for pain and suffering.

In this case, it would not have made any economic sense for Mr. Essayas to commence a legal action as legal costs and disbursements would likely have exceeded the amount recovered.

Filing a complaint under the Employment Standards Act is not the best legal option in all cases. In some cases a better option is to commence a legal action in the courts.

If you are not sure of your legal rights and what legal options are available to you then you can speak to an employment lawyer about your case.

If you would like to speak to a lawyer at MacLeod Law Firm, you can reach us at [email protected] or 647-204-8107.

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

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