Complaints and Enforcements
When an employee feels that the ESA has been breached, they have the right to file a complaint with the Ministry of Labour.
There is no cost to file a complaint.
The employer may NOT penalize an employee for filing a complaint.
There is a limitation period of 2 YEARS. The Ministry will not initiate a prosecution under the ESA more than two years after the alleged offence has been committed.
Not every employee can file a complaint. An employee may not file a complaint if:
- They are represented by a union;
- When an employee has privately sued for the same matter.
Limitation Period for Unpaid Wages
There are different time limits relevant to enforce the recovery of unpaid wages.
Where the unpaid wages came due BEFORE February 20, 2015
The Ministry can only issue an order for unpaid wages that were due prior to Feb. 20, 2015, if the claim was filed within 6 MONTHS of the date of due wages.
Vacation Pay: Unpaid vacation pay may be recovered if the claim is filed within 12 MONTHS of the date of due vacation pay.
Multiple Violations: If an employer has violated the same sections of the ESA more than once with respect to the employee – if at least one of the violations occurred in the six-month period before the claim was filed, the employee is entitled to recover the wages due for all violation that occurred within a 12 MONTH period before the claim was filed.
Where the unpaid wages came due ON or AFTER February 20, 2015
The Ministry can issue an order for unpaid wages (including vacation pay) if the employee has filed a claim within TWO YEARS of the date of due wages.
Extending Time Limits
An employee may make a claim outside the time limit if:
- The employer told the employee they did not have an ESA entitlement, when the employer knew they did, or should have known, and that caused the employee to delay filing a claim.
Outcome of Complaint
The Ministry may issue one or more of the following to an employer:
- An order to pay wages
- An order for compensation or reinstatement
- A compliance order
- A notice of contravention
MOL Powers of Investigation
The Ministry of Labour has a wide range of powers available to it under the ESA. An investigation Employment Standards Officer (ESO) may enter any workplace during business hours, or daylight.
Where the workplace is someone’s house, the ESA must obtain a warrant to enter if not allowed by the owner. Of the powers of an ESO, they may:
- Examine any record or thing;
- Require production of any record or thing;
- Remove and copy any record or thing;
- Use the employer’s IT; or
- Question any person.
The ESO may request a meeting and compel attendance within fifteen days, if one of the following situations applies:
- The ESO is investigating a complaint against an employer;
- The ESO is investigating a place and has reasonable grounds to believe an employer has contravened the ESA;
- The ESO has information suggesting the employer has contravened the ESA regarding an employee;
- The ESO wishes to determine whether the employer of an employee who lives in the employer’s residence is obeying the ESA.
The ESO may also order any or all of the employee, the employer, and a corporate director or employee to the meeting, as well as what materials they are to bring with them or make available to the ESO.
Order to Pay Wages
IF an ESO finds an employer owes wages to an employee, the ESO may arrange with the employer to directly pay wages to the employee, order the employer to pay wages to the employee, or order the employer to pay wages to the Director of Employment Standards.
The order must contain information setting out the amount found to be owing to the employee.
The MAXIMUM amount of wages an employer can be ordered to pay:
BEFORE Feb. 20, 2015 = $10,000
AFTER Feb. 20, 2015 = No Cap
Order for Compensation or Reinstatement
Some breaches of the ESA may be remedied by compensation for the loss OR compensation AND reinstatement.
Areas of the ESA where a violation results in the employee being ordered reinstated are:
- Leave of absence;
- Violations of specific provisions of the retail business establishment section of the ESA;
- Violations of the rules in the ESA regarding lie detectors; and
- Reprisal for the employee claiming his or her rights under the ESA.
This is a unique area of the ESA. Outside of the union context, it is almost impossible to have an employee reinstated to his or her previous role. It is reserved for the most serious violations under the ESA.
An ESO may order:
- The party to stop breaching the ESA;
- What the party must do or not do to comply with the ESA; and
- Specify a date by which the party must do so.
A compliance order is not the ONLY remedy available to an ESO. In some cases, The ESO may make additional orders under different sections of the ESA.
Refusal to Issue Order
Where the ESO refuses to issue an order, it must provide notice in writing to the complainant OR, if no order is issued within 2 years, the ESO will be deemed to have refused to issue the order.
Notice of Contravention
An ESO may issue a notice that sets out the breach has occurred and the specified penalty for the breach. The noticed issued must include the nature of the contravention and must be served to the party who allegedly breached the ESA.
A notice of contravention being issues does not necessarily mean the party received the notice has contravened the ESA.
Instead, the party receiving the notice has up to 30 days to apply to the Ontario Labour Relations Board (OLRB) for review of the notice. The OLRB will decide whether or not to uphold the order.
If the party receiving the notice does not apply to the OLRB for review within the 30 day window, the party will be deemed to have contravened the ESA.
If the party is found to have breached the ESA, the party must pay the fee set by the ESO, and the following may be publicized:
- The name of contravening party
- Description of contravention
- Date of contravention
- Penalty for contravention
Review of an ESO Decision
Parties have the option of requesting a formal review of an ESO decision, this is effectively a review that is heard by the OLRB. The request must be submitted in writing within 30 days of receipt of the Order.
An employer may apply for review of:
- An order to pay wages
- An order to pay fees
- A compliance order
- A notice of contravention of the ESA
- An order to pay compensation
- An order to reinstate an employee
When a request for a review is received, the OLRB may schedule a mediation with the parties. However, no mediation will be scheduled where a notice of contravention has been issued. Where no mediation is scheduled, or is unsuccessful at reaching a settlement, the OLRB will schedule a hearing.
If the ESO issued an order, the OLRB may amend, overturn or uphold the order, or issue a new order.
If the ESO DID NOT issue an order, the OLRB may issue its own order, or uphold the ESO refusal to issue an order.
The OLRB’s decision is final and binding. Should a party not be satisfied, they may apply for judicial review of the OLRB’s decision.
The ESO assigned to investigate can attempt to reach a settlement between the employer and employee. If a settlement is reached, the settlement is binding, the complaint is deemed withdrawn, and the investigation is terminated.
Where one party to a settlement disagrees, believes the settlement to be unfair, or that it was reached through fraud or coercion, it may apply to the OLRB to set the settlement aside.
The OLRB may set aside the settlement, and as a result reinstate the complaint and resume the investigation.