Before submitting a claim, it would be wise to connect with a lawyer or paralegal to determine whether filing an employment standards complaint is your best legal option. In some situations, filing a complaint with employment standards could significantly reduce your compensation compared to starting a lawsuit in Small Claims or Superior Court. For example, if you have been constructively dismissed, then a court may award you compensation equivalent to as much as one month’s pay per year of employment, whereas an employment standards officer’s order is generally limited to one week per year of employment. However, an employment standards complaint could be precisely the best route, for example, when you are the victim of a reprisal for having attempted to assert your rights under the Employment Standards Act.
Once you’ve determined that filing a complaint is the best option, the first step is to make your employer aware of the violation. This step can pose a significant hurdle for many workers. If you fear informing your employer of the violation could invite discipline, dismissal, or another form of reprisal, then you may be able to obtain an exemption from this step.
Next you’ll have to obtain the claim form and submit it both to the Ministry of Labour and your employer according to the instructions provided. The form is accessible online. It comes with detailed instructions and asks straightforward questions, but it is long and tedious.
Employment standards process
Once you’ve submitted the form, an employment standards officer may get in touch with you and your employer in order to resolve the claim through negotiations. In some cases, the officer will simply call both of you to work something out over the phone, and in other cases, he or she will set up a meeting. These meetings can be particularly challenging for unrepresented workers because employers often show up with legal counsel, resulting in a major disadvantage for the worker. In addition, there is a risk that the worker accepts less than what he or she is legally owed. In cases where the worker was earning minimum wage, accepting less than what is legally owed amounts to accepting less than minimum wage.
Ultimately, if the officer can’t get you and your employer to agree on a settlement, then the officer will stop mediating and turn into something like a judge. He or she will then decide whether your employer owes you compensation or not, and if so, then the officer will make an order. These decisions can be appealed to the Ontario Labour Relations Board within 30 days of the decision being issued, but the time and expense may not be worth it, even though the Board’s process tends to be fairer.
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 Ryan McGuire, falling under Creative Commons CC0 license.