Let’s say that you are owed a commission from your former employer. Or, you may be owed overtime by your current employer. Or, perhaps your employer hasn’t paid you equal pay for equal work. All these scenarios are addressed by Ontario’s Employment Standards Act, 2000 (the “Act”) – which sets out employees’ minimum statutory rights and entitlements.
Section 74 of the Act also protects employees from retaliatory measures being taken against them by the employer for invoking their rights under the Act. For instance, terminating an employee or reducing their work hours in reprisal for their attempts to exercise their rights under the Act is a violation of section 74. Where a claimant alleges that they have been subjected to an act of reprisal, the onus is on the employer to disprove the allegation on a balance of probabilities. The employer must prove that the termination of employment was entirely unrelated to the claimant’s inquiry of their rights under the Act.
Where any right protected by the Act has been infringed, the employee can file a claim with the Ministry of Labour. Upon receipt of the claim, an Employment Standards Officer (an “Officer) is tasked with investigating the allegations, and deciding whether the Claimant’s rights have, in fact, been infringed. If the Officer determines in favour of the employee, they have wide powers to order payment of unpaid wages. Where the Officer finds that a reprisal occurred, section 104 of the Act grants the Officer authority to issue an order for compensation or reinstatement of employment. Where reinstatement is not appropriate in the circumstances, the Officer will award compensation. A compensation order is based on three heads of damages:
- Time required to find a new job;
- Loss of reasonable expectation of continued employment; and
- Emotional pain and suffering.
Time Required to Find a New Job
This head of damages is the most contentious. Traditionally, Officers factored in the nature of the claimant’s position with the employer and the amount of hours the employee was working for the employer, and determined the length of time that would be reasonable for the claimant to find comparable employment from the date of termination.
A recent case released in 2019 may potentially increase the employer’s liability, not to the date it should take an employee to find alternative employment, but to the date the Officer released the decision. The Ontario Labour Relations Board’s decision in L & L McCaw Holdings Ltd. operating as Canadian Tire, 2019 CanLII 64732 (ON LRB), stands for the principle that, in the absence of special factors such as the closure of the business, the employer remains liable for the natural consequences of its acts in the pre-Officer decision period and liability continues to run. Otherwise, the employee would bear the negative consequences that stem from the employer’s illegal actions.
Paragraph 94.d. reads as follows:
If the employee does not wish reinstatement because of the Employer having engaged in a reprisal and the poisoned work environment that creates for the employee, or if the Board declines to reinstate, the compensation for lost wages and earnings should, in principle, be the same as for the employee seeking or obtaining reinstatement. The compensation should normally run to the date of the Board’s decision, or to some notional return to work date (emphasis added).
Loss of Reasonable Expectation of Continued Employment
Compensation for the loss of reasonable expectation of continued employment addresses the loss of the job opportunity itself, caused by the employer’s wrongful act. Officers consider the nature of a claimant’s position with the employer, the requisite degree of skill required to perform the job duties and the extent of the employment (i.e. indefinite or fixed-term). The Officer also may factor in whether the employee had long term prospects with the employer.
Emotional Pain and Suffering.
Compensation for emotional pain and suffering recognizes the emotional distress associated with a breach of the Act. Officers deliberate on the employee’s stress and anxiety that would not have been present if the contravention had not occurred. The associated impacts of the loss of a job, such as the loss of income and the stress of commencing a new job search, often lead to emotional pain and suffering compensation being awarded in favour of the employee.
Where a claimant or employer is unsatisfied with the Officer’s decision, each party has 30 calendar days from the day the decision was served on them, to file an Application for Review. This procedure triggers a mediation session at the Ontario Labour Relations Board (the “Board”). Where mediation fails to lead to a settlement, the Board convenes a hearing where each party must provide evidence to prove their case. Parties and their employment lawyers are entitled to call witnesses to provide oral testimony. The Board decides the case based only on the information presented at the hearing. An appeal from the Board’s decision lies to the Superior Court of Justice, Divisional Court, in a process called judicial review.