Ontario Employment Rights: Questions Asked and Answered

On Thursday, November 19, I was given a warm welcome by the Pinecrest-Queensway Community Health Centre, Employment Services division, to give an Ontario employment rights primer to staff. Among other services, the Centre helps people get jobs. What they do is pretty admirable, so I was pleased to share what I know. Besides having a good laugh together, I was asked a number of great questions. Here are a few:

  1. What recourse does an employee have once they’ve been dismissed without cause at or around the probationary period and beyond?
  • Virtually none if dismissed during the statutory probationary period (3 months), except if the reason is related to discrimination or retaliation for reporting health and safety issues.
  • Beyond the probationary period, employees are entitled to some notice – 1 week for 3 months to a year, then one additional week for each year or partial year of service up to eight years. Larger employers with payrolls of $2.5 million can owe more. If this notice isn’t given or paid, employees have two options: they can file a claim with the Ministry of Labour or sue in court, often small claims. Employment standards claims are easy to do, but less money is available in damages. Usually this type of claim makes more sense than suing when the service period is short. Employees can typically get a sense of where they should make their claim by calling an employment lawyer or paralegal, who will generally give that advice for free over the phone.
  1. At what point does an employer need to give cause or documentation for dismissing someone?
  • Only federal employers – i.e. telecommunications, interprovincial shipping, federal government, etc, – have to give written reasons for dismissal. Provincial employers don’t have to provide anything if they are firing for cause. If no cause is alleged, then the employer only has to give written notice of termination. In both cases, the employer has to issue an Record of Employment.
  1. What money needs to be paid out when you dismiss someone?
  • i) 4% vacation pay if it hasn’t already been included in regular pay periods, ii) any moneys earned as of the termination, including commissions, tips, and wages, and iii) any statutory or contractual notice that’s owed (at a minimum).
  1. When a new employee is hired what paper work do they need to complete and fill out?
  • The employee doesn’t have any paperwork to fill out except for a) the contract of employment where necessary, and b) an income tax form that allows the employer to calculate your income tax deductions.
  • However, the employee will need to provide his or her Social Insurance Number for tax, EI, and CPP purposes.
  • And while some kinds of information cannot be required prior to being hired (for example, due to Human Rights legislation), an employer may request a wide variety of other information or have you fill out other forms.
  1. How does over-time work?  What needs to be paid out?
  • Overtime is owed for hours worked that exceed 44 in a one week period, unless the employer and employee have an agreement to average hours over a two or more week period, and that agreement has been approved by the Ministry of Labour or the agreement is pending approval.
  • Overtime is paid at 1.5 times the regular hourly wage.
  1. What does an employer have to show or provide the employee when they are letting go with cause?
  • Just the ROE. Otherwise nothing, unless it’s a federally regulated employer, in which case written reasons are required.
  1. In your work is there a common issue that employees have with employers?  Are you noticing a trend?
  • Docking wages for till shortages, or damage to property, stolen property, etc.: There are very strict rules about when pay can be deducted for till shortages, and how it can be done. (See section 13 of the Employment Standards Act)
  • Failure to accommodate disabilities: Some employers don’t understand that the responsibility to accommodate a disability is high; employers often believe their responsibility is to try to accommodate as long as they aren’t put out, or as long as it doesn’t cost them money. But the law requires them to actually invest energy and resources, sometimes very substantially, to the point of ‘undue hardship’.
  • Most cases relate to failing to provide sufficient notice prior to termination.
  • There is a big problem with clothing in restaurant industry. High heels are a potential safety hazard, and gendered clothing could be discriminatory on various grounds.
  1. What if an employer fires an employee and doesn’t pay out the tips he or she has already earned? What is the employee’s recourse?
  • Unfortunately, Employment Standards Officers can only order employers to pay wages, which does not include tips according to the Employment Standards Act definition. That means that tips cannot be recovered through an Employment Standards complaint; they can only be recovered through a lawsuit in Small Claims court.
  1. What kinds of legal issues arise out of volunteer-based training contracts, like those offered to help people gain skills and experience?
  • There are pretty strict rules around when an employer can ‘train’ someone without pay. Among other requirements, the training has to be comparable to that found at a vocational school, which would disqualify many for-profit employers from accepting trainees. According to the Employment Standards Act, a person receiving training must be paid unless all six of the following conditions are met:

1. The training is similar to that which is given in a vocational school.

2. The training is for the benefit of the individual.

3. The person providing the training derives little, if any, benefit from the activity of the individual while he or she is being trained.

4. The individual does not displace employees of the person providing the training.

5. The individual is not accorded a right to become an employee of the person providing the training.

6. The individual is advised that he or she will receive no remuneration for the time that he or she spends in training.

 

This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.

Featured image by Alex Wong, falling under Creative Commons CC0 license.

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