Complaints under Ontario’s Employment Standards Act: How are Investigations Conducted? Your Guess is as Good as Ours

Complaints under Ontario’s Employment Standards Act

Under Ontario’s Employment Standards Act the complaint process changed about a year ago.

Among other things, an employee can now e-file a complaint. As a result, the number of ESA complaints has skyrocketed. So an employer is now more likely to be subject to an ESA complaint than ever before.

The ESA investigation process is in a state of Helter Skelter

The Ministry of Labour may have an official investigation procedure but in our experience it is not being consistently applied at the moment. We have already been retained by several employers to respond to ESA complaints this year.

In a termination pay case, the ESA officer scheduled a meeting at his office and he conducted a mini-hearing. He did not even raise the possibility of settlement. One of the parties did and the case settled.

In an overtime case, the ESA officer claimed the employee had kept records of his time but refused to provide the employer with the records and issued an order against the employer. The employer appealed and it turned out the records were – shall we say – “suspect” and the employee settled for a pittance.

In another case, after receiving our submissions, the ESA officer concluded that the employee owed the employer money!

A consistent approach to investigating claims may evolve over time but for now it is difficult to predict how a particular claim will be investigated.

Our Recommendations

Regardless of how a complaint is investigated, we make the following recommendations to our clients:

1. Take all complaints seriously. The ESA officer has the power to issue an order against you. It is expensive to appeal this order and even if you win the appeal you will not generally get any of your legal costs back.
2. When you receive a complaint, the Ministry of Labour will ask you to produce certain information. Generally, you should produce it; otherwise the ESA officer could decide to exercise his extensive search powers. You do not want an ESA officer coming to your workplace.
3. Co-operate with the ESA officer. Promptly return his or her calls and correspondence. You do not want to aggravate the officer because he can expand the investigation to include other breaches of the ESA.
4. Provide the ESA officer with documents that supports your case. This may seem trite but some employers do not want to spend the time collecting relevant and helpful documents. This can be a big mistake.
5. If you feel out of your comfort zone, call an employment lawyer.

If you have a question about an ESA complaint, call us at 1-880-640-1728 or email us at [email protected]