Employers in Ontario may see a reduction in the number of claims
filed with the Ministry of Labour (MOL) alleging that they have
breached the Employment Standards Act, 2000
("ESA"). Effective January 19, 2011, new guidelines are
in place to address recent ESA amendments that now require
employees to contact their employers before filing complaints with
The Open for Business Act, which received Royal Assent
on October 25, 2010, included procedural amendments to the ESA that
impose new obligations on employees before their complaints will be
processed and/or pursued by the MOL. Specifically, the new
amendments require the employee to demonstrate to the MOL that he
or she has:
informed his or her employer as to why the employee believes
the ESA has been contravened;
informed his or her employer of the amount of wages the
employee believes he or she is owed, if any, as a result of the
provided to the MOL, in writing, a description of the
information the employee gave to the employer regarding the
complaint, how the information was given (e.g., verbally, by
e-mail, by registered mail, etc.), and how the employer responded;
given the MOL, in writing, any other information that the MOL
might consider appropriate.
While certain "good reason" exceptions have been
included in the new complaints form that would not require an
employee to give advance notice and essentially discuss the ESA
issues prior to filing a complaint, these changes institute a
further initial step employees must take prior to having their
complaints investigated and addressed.
Prior to these amendments, employees did not have to approach
their employers or provide any notice of their intentions to file
ESA complaints. Rather, an employee who felt his or her ESA rights
had been violated could simply file a complaint with the MOL, who
would assign an employment standards officer to investigate.
The new process may indirectly reduce the number of ESA claims
that are filed, as employees may not wish to provide pre-filing
notice or discuss with their supervisors or managers how they
believe the company has breached their rights. However, by
requiring employees to raise matters with their employers at the
outset of the process, the amendments may encourage the parties to
settle issues without requiring an MOL investigation.
In order to further assist employers and employees in settling
ESA issues, the new amendments also give employment standards
officers greater powers to attempt to settle claims after they have
been filed. As well, employment standards officers have been given
the power to summarily decide complaints if a party fails to attend
a scheduled meeting.
The new ESA amendments came into force on November 29, 2010, but
the claims form was only introduced as of January 19, 2011. Under
the new guidelines, employees will be given tools to assist them in
contacting and approaching their employers about ESA issues. When
it comes to resolving these ESA issues, however, the ball has been
put in the employee's court.
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