Employment Standards Act: Administration and Enforcement

• Author: Netta Romano
• Pages: 73-106

73

Employment

Standards Act

ADMINISTRATION ANDENFORCEMENT

3

Learning Outcomes

After completing this chapter, you will be able to:

• Outline the employment standards complaint process

and procedure at the Ministry of Labour, Training and

Skills Development.

• Identify the Ministry of Labour, Training and Skills

Development’s investigative process and the types of

orders and notices that may be issued by an

employment standards officer.

• Identify behaviours that constitute reprisal under the

Employment Standards Act, 2000.

• Describe the process for enforcing the employment

standards in Provincial Of fences Court under the

Provincial Offences Act.

• Identify the types of regulatory offences included in

the ESA and the defences available to a defendant

charged with an offence under the ESA.

Introduction ........................ 74

Filing a Complaint ................... 74

The Investigative Process ............. 75

Officer’s Decision ................... 76

Appeals of an ESO’s Decision .......... 79

Reprisals ........................... 79

Enforcement of the ESA in Provincial

Offences Court .................. 80

Part I: Offence Notice or Summons ..... 81

Part III: Information ................. 90

Prosecuting Regulatory Offences ....... 94

Type of Offence, Proof Required, and

Defences ...................... 95

Further Reading .................... 99

Related Websites .................... 99

Key Terms ......................... 99

Review Questions ................... 99

Discussion Questions ................ 99

Appendix 3.1 Ministry of Labour

Employment Standards Claim

Form .......................... 101

© 2022 Emond Montgomery Publications. All Rights Reserved.

74 EMPLOYMENT LAW FOR PARALEGALS

Introduction

The Employment Standards Act, 2000 1 is administered by the Ontario Ministry of

Labour, Training and Skills Development, which “enforces and promotes awareness of

employment standards.”

2 The Act gives employment standards ofcers (ESOs) extensive

investigation and inspection powers to ensure compliance with the minimum statutory

requirements contained in the legislation.

This chapter addresses the process for enforcing ESA rights at the Ministry of

Labour from the initial complaint, investigation, and remedies granted by the Ministry

to the prosecution of violations in Provincial Offences Court.

Filing a Complaint

An employee who believes that their rights under the ESA have been violated may le

a complaint with the Ministry of Labour pursuant to section 96 of the Act. An employee

can only do so if they are (1) covered by the ESA and, if so, (2) are not excluded from

the particular benet they believe they are entitled to, such as overtime pay or public

holiday pay. Ontario Regulation 285/01 contains the exemptions and special rules with

respect to the application of the various sections of the ESA. For example, a person

employed as a landscape gardener is covered by the ESA; however, pursuant to section

8(d)(i) of O Reg 285/01, landscape gardeners are not entitled to overtime pay.

There are other circumstances that would prevent an employee from ling a com-

plaint with the Ministry of Labour. First, if the employee is covered by a collective

agreement, they must pursue their remedies through the grievance process outlined

in it (s 99(2)). Second, if the employee has started civil proceedings for unpaid wages,

they cannot le a complaint with the Ministry of Labour (s 98(1)). If the employee has

led a complaint, they cannot subsequently commence a civil proceeding for wrongful

dismissal if the complaint and the proceeding would relate to the same termination of

employment (s 97(2)). If an employee decides to start a court ac tion after ling a claim

with the Ministry of Labour, the employee must withdraw the claim within two weeks

of ling or the court action will be barred.

Complaints may be led for both monetary and non-monetary claims, such as an

employer’s failure to comply with meal breaks or time off between shifts, the poster

requirements in the ESA, leaves of absence, or the many obligations relating to tempor-

ary help agencies. The Ministry of Labour’s website includes a guide to the Employment

Standards Act 3 as well as instructions on ling a claim by using the online portal or by

completing a PDF claim form,

4 a sample of which is found in Appendix 3.1. The general

limitation period for ling a claim is two years for both monetary and non-monetary

claims (see ss 96(3), 111(1), which prohibit an ESO from issuing an order for wages that

became due more than two years prior to the complaint being led). The claim form

1 SO 2000, c 41 [ESA].

2 “Employment Standards” (la st modied 15 April 2021), online: Ontario Ministry of Lab our <https://www.labou r

.gov.on.ca/engli sh/es>.

3 “Your Guide to the Employment Stan dards Act” (last modied 19 Apri l 2021), online: Governme nt of Ontario

<https://www.ontario.ca/document/your-guide- employment-standards-act-0>.

4 “Filing a Claim” (last modied 15 March 2021), online: Gover nment of Ontario <https:// www.ontario.ca/

document/your-guide- employment-standards-act-0/ling -claim>.

© 2022 Emond Montgomery Publications. All Rights Reserved.

CHAPTER 3 EMPLOYMENT STANDARDS ACT 75

requires the employee to provide specic details about the employment standards that

are alleged to have been violated and details as to when it occurred. Claims may be led

online (this is the method recommended by the Ministry of Labour) or by fax, mail, or in

person at select ServiceOntario centres.

If an employee is entitled to a greater right or benet than what is provided for in

the ESA, the ESO will enforce the greater right or benet. For example, if Bill earns

$17.50 per hour and was entitled to but did not receive overtime pay, the ESO will

calculate the amount owing based on his actual rate of pay, not the prescribed min-

imum wage.

Once a claim is led, an ESO is assigned to investigate the complaint. This includes

contacting the employer, obtaining any records and/or documents needed to verify

amounts claimed to be owing, and, if necessary, requiring the parties to attend a meet-

ing (s 102). The ESO must give at least 15 days’ written notice of the meeting. The Act

requires the parties to attend and bring all necessary documentation regarding the

matters in dispute. Failure to attend or to bring the necessary documents may be deemed

a contravention of the ESA (s 102(10)), which could result in administrative penalties or

prosecution under the Provincial Offences Act.

5 At a minimum, the ESO may proceed

with the meeting in the party’s absence or in the absence of the documents and make a

decision based on the evidence available. Section 101.1 of the Act gives the ESO the

authority to attempt to effect a settlement of the complaint. If a settlement is reached,

it is binding on the parties, the complaint is deemed to have been withdrawn, and the

investigation is terminated.

The Investigative Process

Employment standards ofcers from the Ministry of Labour have wide-ranging pow-

ers set out in section 91 of the Act to both investigate complaints and conduct pro-

active inspections. These powers include the ability to:

• enter the employer’s premises and investigate without a warrant;

• examine company records (for example, payroll records, time sheets, and tax

documentation);

• require production of relevant documents for inspection;

• remove records or other relevant documentation; and

• question anyone, including employees.

The Act imposes a positive duty on a person who has control of any document

requested by an ESO during an inspection to produce it on request and provide any

assistance necessary to interpret the document for them (s 91(8)). If the ESO has been

prevented from entering the employer’s premises, or there are reasonable grounds to

believe the ofcer will be prevented from doing so or that an offence under the Act

or the regulations has been or is being committed, a justice of the peace may issue

a warrant authorizing the ofcer to enter the premises. Entry is permitted between

8a.m. and 8 p.m., and the police may be called to assist in entering the premises.

Awarrant under section 92 expires 30 days after the date it was issued.

5 RSO 1990, c P.33 [POA].

© 2022 Emond Montgomery Publications. All Rights Reserved.