Ontario’s Employment Standards Act (“the Act” or “ESA”) regulates employment in the province of Ontario and covers minimum wage, maximum work hours, overtime, equal pay and leaves of absence. The Act sets out minimum employee entitlements as well as corresponding enforcement mechanisms.
What many people may not know is that the Act empowers Ontario’s Ministry of Labour to investigate and adjudicate incidents in which an employee’s rights under the Act have allegedly been infringed. Specifically, the Ministry’s Provincial Claims Centre receives complaints of contraventions of the Act, which are investigated by employment standards officers. Employment standards officers are then tasked with investigating by gathering evidence from both the employer and the employee and deciding whether, on a balance of probabilities, the Act has, in fact, been breached. Where an officer does find a contravention, he or she has the power to order that the affected employee be compensated, that the employee be paid all outstanding wages, and/or that the employee be reinstated with back pay (if they have been terminated pursuant to a reprisal).
Ministry Complaints and Civil Claims are Not Mutually Exclusive
Aside from being efficient and proceeding expeditiously, the process can also resume contemporaneously with a claim in the Superior Court, so long as the complaint does not pertain to termination or severance pay. Canadian courts have held that an ESA contravention that is the subject of a complaint to the Ministry of Labour is precluded from also being litigated in the courts. Employees can, however, make claims in both venues, so long as they are claiming for different remedies/damages. For instance, an employee can claim for unpaid wages through a Ministry complaint and sue for common law termination pay through the courts. An employee cannot claim for termination pay in both venues.
Common Contraventions
Among the most common contraventions of the Act are unpaid commissions, minimum wage, overtime pay and equal pay. Per section 22 of the Act, employers must pay employees overtime pay of at least one and one-half times his or her regular rate for each hour of work in excess of 44 hours in each week. Per section 23 of the Act, an employer shall pay employees at least the minimum wage. An employer is considered to have complied with this section only if when the amount of regular wages paid to the employee in the pay period is divided by the number of hours he or she worked in the pay period, other than hours for which the employee was entitled to receive overtime pay or premium pay, the quotient is at least equal to the minimum wage. Per section 42 of the Act, all employees are entitled to equal pay for equal work. This means that no employer can pay an employee of one sex at a rate of pay less than the rate paid to an employee of the other sex when,
(a) they perform substantially the same kind of work in the same establishment;
(b) their performance requires substantially the same skill, effort and responsibility; and
(c) their work is performed under similar working conditions.
This rule does not apply, however, when the difference in the rate of pay is made on the basis of a seniority system or a merit system or a system that measures earnings by quantity or quality of production. Unpaid commissions are another common contravention of the Act, which are treated as unpaid wages. All of these types of pay are statutorily guaranteed by the Employment Standards Act, and where any of the aforementioned sections are contravened, an employee can file a complaint with the Ministry of Labour for any wages they are owed with an employment lawyer. Whether an employee presently works for the employer in question or has been terminated, has no bearing on any of the above. Further, section 74 of the Act specifically protects employees from employers seeking to retaliate against them for filing a complaint or exercising their rights under the Act.