Understanding Employment Standards Act Claims

**Written by Adele Zhang, Summer Student at Lee Workplace Law

In Ontario, most employees and employers are covered by the Employment Standards Act ("ESA"). The ESA outlines employers' and employees' rights and obligations in the workplace.

If an employee believes their employer has not complied with their obligations under the ESA, they may be able to file a claim with the Ministry of Labour, Training, and Skills Development. In this blog post, we outline the general process involved with pursuing an ESA claim. It is important to keep in mind that every case is different and that there may be additional steps or considerations for any given claim.

Step 1 - Determining the ESA's Coverage

Although the ESA covers the majority of employment relationships, the legislation does not apply to certain types of employees and organizations. Examples include secondary students working through school authorized programs or foreign national employees. For a complete list of workers not governed by the ESA, please consult the ESA's regulations.

In addition to these types of employment relationships, a claim cannot be filed where:

  • The employee has taken court action against their employer for the same issue;
  • The employee is represented by a union and covered by a collective agreement; or
  • The employee works in an industry that falls under federal jurisdiction.

If an employee does not fall within one of the excluded categories, they may be eligible to bring a claim under the ESA.

Step 2 - Determine if a Breach has Occurred

Before filing a claim, it is important for an employee to determine whether a breach of the ESA has occurred. Common violations include failing to pay the correct rate of pay or refusing to provide wage statements.

Employees are encouraged to seek legal advice to help them identify if a violation has occurred and to better understand what a claim entails and how it may impact their ability to pursue other forms of legal action.

Step 3 - Time Limits on Claims

Generally, an employee must file a claim within two years of the alleged ESA violation. This is known as the limitation period. If the claim is about unpaid wages, the wages sought must have been owed to the employee within two years of the filed claim.

The limitation period was suspended between March 16, 2020 to September 13, 2020 due to the COVID-19 pandemic. This means that the time during the suspension is not included in calculating the two-year period. For more information about this suspension, see the Ontario Regulation 73/20.

Step 4 - Filing the Application

Applications can be filed online or in hardcopy. Both processes include a series of preliminary questions and provide the employee with an opportunity to attach supporting documents. Supporting documentation varies depending on the claim, but typically includes pay stubs, hours worked, and a record of employment.

The online application form can be accessed here: Terms of Use - Claims (gov.on.ca).

The hardcopy application can be accessed here: PDF claim form and submitted in three ways:

Step 5 - Investigation

Once the claim has been processed, the claim will be assigned to an ESA officer for investigation. The officer may conduct their investigation by telephone, through written correspondence, by visiting the employer's premises, or by setting up a meeting.

During the investigation process, both parties are given the opportunity to provide their arguments and evidence, and challenge the other party's account of what happened.

Step 6 - Settlement

Even after a claim has been filed, the employee and employer may be able to enter into a settlement to resolve their dispute. As the investigation of an ESA claim may take months, settlement may provide a quicker and cost-effective solution for both parties.

If a settlement is reached, the employee and employer must inform the ministry in writing of the terms of the settlement. Parties may use the following forms to inform the ministry: Notification of Section 112 Settlement Form and Section 112 Terms of Settlement.

Step 7 - Decision

If there is no settlement, the investigating officer will make a decision based on the best available evidence to determine whether the employer has or has not breached the ESA.

If the officer finds that the employer has complied with the ESA, the employee will be notified in writing and can apply for a review within 30 days.

Where the officer finds that the employer has failed to comply with the ESA, the officer may issue an order against the employer. These orders can include an order to pay wages, a compliance order, a ticket, a notice of contravention, or an order to reinstate the employee. The officer can issue one or more orders during the course of an investigation.

Concluding Remarks

The ESA sets out important rights and responsibilities that govern employment relationships in Ontario. However, the ESA can be difficult to understand. Employers and employees alike are encouraged to seek legal assistance when dealing with ESA claims. Lee Workplace Law would be happy to help.