Thursday, December 2, 2010

The Employment Standards Enforcement Process

There are changes coming to the Employment Standards complaint enforcement process, with Bill 68. I'll explain the consequences of the changes in another post, and how the changes put employees in a more difficult position, possibly giving employers less incentive to comply with their legal obligations up front. But first I'll explain the process itself.

Most people are aware of the existence of the Employment Standards Act, 2000, and of the availability of a complaints process to the Ministry of Labour. I have the impression that many employees think that a complaint to the MoL is sort of like a complaint to the police - i.e. that there's a certain moral aspect to it but, even if something happens, the complainant gets no real benefit from it, and is open to reprisal from the subject of the complaint.

Quite the contrary: For most matters, a complaint by an employee to the Employment Standards branch of the MoL initiates a legal proceeding against the employer - it is much like suing the employer, but the process is different (easier, more cost-effective) than that of the courts. If the complaint is well-founded, the complainant can expect to be compensated for losses suffered by reason of the employer's breaches of the statute.

Several caveats:
(1) The Employment Standards complaint process, for most matters (but with some exceptions), caps recovery at $10,000.00.
(2) The Employment Standards complaint process cannot compensate a complainant for wrongs other than breaches of the ESA. If the employer isn't paying wages as required, the Ministry can remedy that. If the employer is paying wages, but the rate of pay is below the applicable minimum wage, the Ministry can remedy that. But if the complaint is of some other unfairness, discrimination in breach of the Human Rights Code, etc., which isn't captured by the ESA, then the remedy for that lies elsewhere (Courts, the Human Rights Tribunal, or whatever other tribunal might be applicable under the circumstances).
(3) In circumstances such as dismissal, where your ESA entitlement (i.e. to termination pay) might be less than your 'common law' entitlement, the Ministry can only compensate you for the ESA minimum, and you cannot subsequently sue in Court for the rest of your common law entitlement.

Caveats aside, the Employment Standards complaints process does have its uses, especially if you're still employed with the employer: Inquiring about your rights, or initiating/participating in a complaint under the ESA (among other things), triggers an anti-reprisal clause in the ESA. If the employer takes a negative action against the employee because, for example, the employee filed a complaint, then the employer can be in quite a lot of trouble for that.

I know what you're thinking: "Okay, so I make a complaint against my employer, and my employer then fires me because of some trumped up disciplinary allegation. How can I ever prove that it was really because of my complaint?"

Herein lies the beauty - or the terror, depending on your perspective - of the provision: The onus isn't on the employee to prove reprisal. If an employee brings a reprisal complaint against the employer, it's on the employer to disprove the allegations. And if the termination (or other negative conduct) followed on the heels of some sort of Employment Standards complaint, it's a hard onus for the employer to meet.

And it isn't just termination that can offend the anti-reprisal provision. Anything from disciplining a late employee to declining a short-notice vacation request can put an employer in a difficult position defending against reprisal allegations from an employee who has brought an Employment Standards complaint - even if the complaint itself turns out to be without merit.

Mind you, there are ways for an employer to protect itself from reprisal complaints. It involves implementing and consistently following policies and procedures for discipline and other discretionary matters. Retaining a qualified lawyer (such as myself :) or a qualified Human Resources consultant to help develop these policies and procedures can put an employer in a much stronger position. This has to be pre-emptive, though, implemented before you run into other Employment Standards problems, in order to be really useful. The idea is that, if you refuse that short-notice vacation request to an employee who previously brought a complaint against you, and the employee brings a reprisal complaint as a result, you want to be able to point to a long consistent pattern of refusing vacation requests with too little notice.

Also, as another peripheral note, ESA minimum entitlements are not subject to mitigation. Meaning: If an employee gets fired, and finds a new job the next day, the employee can still pursue the statutory minimum termination pay.

So, put briefly, here's how the process works:

Employee files a complaint. Complaint gets assigned to an Employment Standards Officer. The Officer then contacts the employee and employer and investigates the complaint. At the end of the investigation, the Officer either finds merit to the complaint and issues an Order to Pay against the Employer, or doesn't and declines to issue an Order.

The unsuccessful party can choose to apply for review to the Ontario Labour Relations Board, and gets a hearing de novo there. (i.e. a full new hearing of all the evidence, without reference to the evidence before the Officer.) Matters will frequently go to that level. There is the availability of judicial review to a Court beyond that level, but that's more expensive, more complicated, and often more difficult. (Essentially, at the Divisional Court you're not arguing directly the merits of the complaint, but rather you're arguing that the OLRB made a mistake. And the Courts like to defer to tribunals like the OLRB, if they can find a reason to.)

I've seen a lot of employers get away with breaching the ESA for long periods of time, for several reasons, most of which are related to the natural imbalance of power and sophistication between the employee and employer:
(1) Employees may not know their rights;
(2) Employees may be conflict-averse and prefer positive relations with the employer rather than getting their rights respected;
(3) Employees may be worried about job security (unaware, or not, of the anti-reprisal provision);
(4) Employees may be unaware of the recourse available through the complaint process, and can't afford to get legal advice on the point (indeed, frequently the cost of a lawyer is prohibitive to an employee with a legitimate ESA complaint); or
(5) Even an employee aware of their rights and recourse may be intimidated by the prospect of initiating legal proceedings against the employer.

So I would suggest that it is a fair inference that the actual complaints that go to the Ministry are just the tip of the iceberg on the actual violations of the ESA in the Province.

Tomorrow: Why Bill 68 will aggravate this disparity.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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