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 MOL.

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 alleged breach;
  • 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; and
  • 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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