Minimum Mandatory Employer Obligations - Employment Standards Act, 2000

• Author: Paul Wearing
• Pages: 29-50

• 29

CHAPTER SEVEN

Minimum Mandatory Employer Obligations —

Employment Standards Act, 2000

What You Should Know

This law1 is an employee’s best friend. It sets minimum standards for the

regulation of basic working conditions of employees who perform work in

Ontario or outside Ontario if the work performed o utside Ontario is a con-

tinuation of work performed in Ontario. The Employment Standards Act,

2000 imposes obligations on employers for record keeping and job pro-

tection for specif‌ied leaves of absence. It sets standards for hours of work

and eating periods and breaks. It guarantees minimum wage, overtime pay,

termination pay, severance pay, if applicable, vacation pay, public holiday

pay, equal pay for equal work, and continuity of employment when busi-

nesses are sold. The law protects employees from reprisals for seeking the

enforcement of the standards set by the law and provides a vehicle for em-

ployee complaints and the investigation and adjudication of those com-

plaints. It sets business conduct standards for temporar y help agencies

and codif‌ies the obligations of those agencies toward temporary workers.

The law provides employees with a cost-free vehicle to obtain remedies

against their employer to enforce the standards and protections mandated

by the Employment Standards Act, 2000. Additional workplace standards

for the benef‌it and protection of employees are mandated by the Ontario

Occupational Health and Safety Act, Human Rights Code, Pay Equity Act,

Workplace Safety and Insurance Act, 1997, and Accessibility for Ontarians

With Disabilities Act, 200 5.

30 • EMPLOYMENT AND LABOUR LAW TOOLBOX

The Employment Standards Act, 200 0 provides a broad def‌inition of

“employer” to assist adjudicators and judges in identifying an entity respon-

sible for providing a remedy to an employee for violation of the statute.

The def‌inition of employer includes an owner, proprietor, manager,

superintendent, overseer, receiver, or trustee of an activity, business, work,

trade, occupation, profession, project, or undertaking who has control or

direction of, or is directly or indirectly responsible for, the employment

of a person in it, and includes a person who was an employer, and any

persons treated as one employer.2 Persons treated as one employer are:

associated or related activities or businesses carried on by or through an

employer and one or more persons.3

As observed earlier, the purpose of the Employment Standards Act,

2000 is to enforce minimum standards for working conditions on em-

ployers for the benef‌it of their employees. Classifying a ser vice provider

as an “employee” is not always a simple exercise. In fact, classif‌ication of

workers is a hotly litigated issue in labour relations and at common law

due to potentially onerous liability for an “employee’s” rights to termina-

tion compensation and safety. As the reader learned in Chapter 3, the law

recognizes certain service providers as “dependent contractors,” giving

them the same benef‌its as “employees.” The factual foundation of the lit-

igated association determines the outcome of a claim. The Employment

Standards Act, 2000 def‌inition of “employee” can be relied on to embel-

lish the factual foundation.

Under the Employment Standards Act, 2000, the def‌inition of “em-

ployee” include s

• a person, including an ocer of a corporation, who performs work

for an employer for wages,

• a person who receives training from a person who is an employer,

if the skill in which the person is being trained is a skill used by the

employer’s emp loyees,

• a person who supplies services to an employer for wages,

• a person who is a homeworker, and

• it includes a person who was an employee.4

All employment contracts, whether written or oral, must meet or ex-

ceed the minimum standards set for terms and conditions of employment

by the Employment Standards Act, 2000. An employer and employee can

agree to compensation that provides a greater benef‌it than the minimum