The Ontario Employment Standards Act: A Revised Complaint Procedure

CHANGES TO THE ONTARIO EMPLOYMENT STANDARDS ACT COMPLAINT PROCESS

Sometimes the most cost effective legal proceeding for an employee to pursue is a complaint under Ontario’s Employment Standards Act.

Earlier this year the complaint process under the Employment Standards Act changed. Now an employee must generally let their employer know about an Employment Standards Act complaint before the Ministry of Labour will accept a complaint.

There is a new Complaint Form which should be carefully completed.

Employment standards officer have the powers to make an early decision. So, it is very important to include copies of all relevant documentation with your Complaint Form.

Here are three issues to consider when deciding whether to bring an ESA complaint:

1. Employment Standards Act versus Wrongful Dismissal

If you decide to claim for the minimum termination pay that you are owed
under the ESA then you cannot generally also bring a wrongful dismissal
action in the courts. So you need to carefully consider whether filing an
ESA claim, or commencing a wrongful dismissal action is the best option
for you.

2.   ESA claims can only pay out up to $10,000.00

An employment standard officer only has jurisdiction to order an employer
to pay up to $ 10 000 for all violations under the ESA including claims
for unpaid wages (including commissions in some cases), overtime pay,
vacation pay, holiday pay, termination pay and/or severance pay. So if you are owed more than $ 10 000 then you need to carefully consider whether
you (i)  waive your claims in excess of  $ 10 000; (ii) sue in the courts, or (iii) limit your claim to specific amounts owing under the ESA, and bring other legal proceedings to recover the balance of the  monies owing.

3. You need to file a complaint under the ESA in a timely manner.

Generally, you must file a complaint within six months of the violation.
There is an exception for vacation pay and for situations where an employer violates the same section of the ESA more than once in the six month period preceding the claim.

Although you can file a complaint under the ESA without the assistance of a
lawyer, you may want to consult with an employment lawyer with expertise in
this area to discuss the issues raised in this blog before deciding to file an
ESA complaint.

Please contact us at  [email protected] or 1-888-640-1728 (toll free) or 647-633-9894 (within the GTA).