• asked the employer to comply with the Employment Standards Act, 2000 (ESA) and the regulations
• asked questions about rights under the ESA
• filed a complaint under the ESA
• exercised or tried to exercise a right under the ESA
• gave information to an employment standards officer
• took, planned to take, being eligible or becoming eligible for a parental, pregnancy, personal emergency, declared emergency, family medical leave, organ donor, or reservist leave
• was subjected to a garnishment order (i.e., to have a certain amount deducted directly from wages to satisfy a debt)
• participated in a proceeding under the ESA
• participated in a proceeding under section 4 of the Retail Business Holidays Act (regarding tourism exemptions that allow retail businesses to open on holidays)
• refused to take a lie detector test
• refused Sunday work (for certain retail workers only)

Section 104 of the ESA tells us that if an Employment Standards Act officer finds that an employee has been a subject of reprisal then that officer has the authority to reinstate an employee into his or her position, order that the employee be compensated for any loss incurred as a result of the contravention and order that the employee be both compensated for any loss and be reinstated to his or her prior position.  Any compensation under the reprisal provision must be paid to the Director of the Employment Standards Act in trust together with an administrative fee of $100 and 10% of the amount of compensation.  The $10,000 cap on orders to pay wages under Section 103 of the ESA is eliminated and there is no maximum recovery amount under the reprisal provisions.

In short, your employer is completely prohibited from penalizing you in any way because you want or you request that your employer comply with the Employment Standards Act and its regulations.  You are allowed to ask questions about the ESA, your are allowed to file a complaint under the ESA, you are allowed to exercise your rights under the ESA and you are allowed to plan and take a leave of the ESA including pregnancy, parental, family, medical, personal injury or reserves leave.  You have rights in this province and you should never let an employer refrain you from exercising your rights under the ESA.

If you have any questions regarding the above, please do not hesitate to contact Matt Lalande at (905)-639-8894 or fill in the contact form on this website. Matt will get back you within 20 minutes.

Part V, Sections 11 to 14 of the Ontario Employment Standards Act deals with the payment of wages.

The Act indicates that as an employer you must establish a recurring pay period and a recurring pay day for your employees.  You shall then pay all wages earned during each pay period, other than accruing vacation pay, no later than the established pay day.  There prescribed manner is by cash or cheque payable to the employee only.   You can obvioulsy use direct deposit to pay your employees, but the account must be in the employee’s name;  no person other than the employee or a person authorized by the employee has access to the account.

You also need to provide your employees with statements.  On or before your employee’s pay day, you are to give to your employee a written statement setting out several things including the pay period for which the wages are being paid; your employee’s  wage rate, if there is one; and the gross amount of wages to be paid. You are also to state the amount and purpose of each deduction from wages and the total net amount being paid out the your employee.  The statements need to be in writing or you can email the statements to your employees – ideally the information should be kept separate from the cheque.

Your employees has the right to a vacation pay statement.  If your employee requests a vacation pay statement you must prepare one and  provide the information no later than seven days after the request or the first pay day after the employee makes the request. You only have to legally provide the information with respect to each stub year or vacation entitlement year only once. If your employee has agreed that vacation pay will be paid on each pay cheque as it is earned, you technically do not need to  keep records and provide statements about vacation pay.  You must then pay it separately from the amount of wages being paid out, and prepare a separate statement that sets out the vacation paid that will be paid – you do need to keep a record of this information.

If employment ends – besides the obvious providing of the ROE -  you must pay your employee’s wages no later than the later of seven days after the employment ends or what would ordinarily have been your employee’s next regular pay day.

With respect to deductions- the ESA notes that deductions can only be made 3 ways – through Statutory Deductions -such as EI, CPP and Income Tax. You CANNOT deduct more than the statute allows and you are not allowed to make deductions if the money is not remitted to the proper authority.  You are also allowed to make deductions if set out by Court Order. If you get a Court Order – follow it. Don’t make deductions any other way – even if you employee ends up owing you money (i.e. breaking stuff accidentally).  You can also make deductions via  written authorization, if your employee has signed a written statement authorizing the deduction that specifies the amount of money to be deducted or it provides a method of calculating the specific amount of money to be deducted.

Be careful – Your employee’s verbal authorization or a general statement that he or she owes you money is not sufficient to allow a deduction from wages.  Even if you have authorization – it is illegal to make deductions to  cover a loss due to work mishaps – i.e. over or under counting money, spoiling items or breaking things. You should never deduct money from your employee’s pay cheque to cover these things.

It all seems like simple stuff – but it is required by law.

If you have any questions please do not hesitate to contact me through the contact form, or you may visit www.haber-lawyer.com and contact me via email at matt.lalande@haber-lawyer.com

There are some exceptions to this. Consult me if you need more information.

What does the poster contain?A brief summary of the “highlight” of the employment standards act. including:

• the hours of work
• rest periods
• overtime pay
• minimum wage
• payroll records
• vacation time and pay
• public holidays
• leaves of absence from work
• termination notice and pay
• reprisals
• enforcement

What do you do if your workplace does not speak English?
If the majority language of a workplace is a language other than English, the employer must contact the Ministry of Labour to see whether the ministry has prepared a translation of the poster into that language

Do you need to hang the poster?
An employer who fails to meet these posting requirements may be fined and/or prosecuted by the ministry.

*Employment Standards Act, 2000, S.O. 2000, c. 41, s. 2(1).
*Employment Standards Act, 2000, S.O. 2000, c. 41, s. 2(3).

What does the Employment Srandards Act Cover?

The ESA covers a wide range of employment standards including: minimum requirements for workplaces; provisions to assist employees with family responsibilities; increased flexibility in work arrangements; and mechanisms for compliance and enforcement. Subjects covered under the ESA include:

• Posting Requirements
• Hours of Work
• Eating Periods
• Rest Periods
• Wages and Overtime
• Minimum Wage
• Pregnancy and Parental Leave
• Personal Emergency Leave
• Family Medical Leave
• Public Holidays
• Vacation
• Termination and Severance of Employment
• Temporary Layoffs
• Equal Pay for Equal Work
• Temporary Help Agencies
• Enforcement and Compliance

Employers and employees cannot contract out of or waive these minimum standards.  However, if a provision in an agreement gives an employee a greater right or benefit than a minimum employment standard under the ESA then that provision applies to the employee.

Also – remember the Ontario Employment Standards Act only contains certain rules affecting work in Ontario. There are other provincial and federal legislation that govern issues such as workplace health and safety, human rights and labour relations. Related Ontario laws include the Occupational Health and Safety Act, the Workplace Safety and Insurance Act, 1997, the Labour Relations Act, 1995, the Pay Equity Act, and the Human Rights Code.

What does the employment standards act of Ontario not cover?

• such issues such as mployees and employers in sectors that fall under federal jurisdiction (examples are airlines, banks, the federal civil service, post offices, radio and television stations and inter-provincial railways)
• Individuals working  under a program approved by a college of applied arts and technology or university
• high school work experience programs authorized by the school board that operates the school in which the student is enrolled
• People who do community participation under the Ontario Works Act, 1997
• Police officers
• Inmates taking part in work or rehabilitation programs
• professionals like politicians, judges religious people and elected union officials
• Some crown employees
• some diplomatic personnel
• A participant in community participation under the Ontario Works Act, 1997
• A member of a quasi-judicial tribunal – like the criminal compensation board

For more information give Matt Lalande a call or email him at matt@employment-law.ca

On it’s own wording the clause is inapplicable. In terminating the Plaintiff, the Defendant Advanis relied on an express provision in the older employment contract that should it be determined at any time that there is not a fit between the Plaintiff’s skills and the requirements of the job, his employment with Advanis would be terminated and he would receive severance as determined by the applicable provincial Employment Standards Act.  Judge Aston noted that in the 2006 promotion letter, there was no provision relating to termination of the Plaintiff’s employment.  The Judge also noted that in the context of changing the Plaintiff’s job description and a letter detailing his new terms of employment and compensation, the wording of the original employment contract became inappropriate.  It was no longer appropriate to relate “a fit between your skills and the requirements of the job” to the new job specifically designed to provide employment responsibilities tailored to the demonstrated job skills of Mr. Dwyer.  The judge noted that although an original contractual provision for termination can continue or survive other changes to the employment contract, in some cases as a matter of law, the facts of this case lead him to conclude that the original provision was no longer part of the mutual understanding of the parties after the Plaintiff assumed the new role of Executive Vice-President, Sales and Marketing in 2006. In short, he was fired because of company finances, not his skill set.

In addition, with respect to the termination, the Judge noted that the clause is at least ambiguous as to whether it limits the Plaintiff’s entitlement to “the applicable Employment Standards Act” and nothing more.  He noted that any ambiguity should be construed against the Defendant as the author of the document, particularly given the disparity in the bargaining position of the parties.

Finally, under s. 57 of the Employment Standards Act, the Plaintiff was entitled to four weeks notice of termination and under s. 60 of that Act the Defendant was required to maintain his employee benefits during that period.  It did not do so.  The Defendant should not be afforded the protection of a contractual provision it breached itself.

You can see how it is important to not only have employment agreements drafted that are suitable to each hire, but if there is a promotion or extension – you should never rely on the old agreement. Never rely on boiler plate agreements…more importantly, when you change an agreement, ensure that there is proper consideration given. The best thing to do is a complete effective re-draft instead of providing amended agreements. Don’t rely on original provisions or original contracts when you  promote an employee.

If you have any questions please call Matt Lalande at 905.639.8894

What are public holidays and how do employers deal with them?

Firstly who gets paid public holiday pay?
Qualified employees can be full time or part time employees, permanent employees or contract employees. They can also be students. It does not matter how recently they were hired, or how many days they worked before the public holiday.

What are the public holidays in Ontario?
We have nine statutory holidays in Ontario:
•    New Year’s Day;
•    Good Friday;
•    Victoria Day;
•    Canada Day;
•    Labour Day;
•    Thanksgiving Day;
•    Christmas Day; and
•    Boxing Day.

You are not required to give your employees a holiday on Easter Sunday, Easter Monday, the first Monday in August, or Remembrance Day.  While some employers do, it is not required under the Employment Standards Act, 2000.

If a public holiday falls on a day that would ordinarily be a work day the employee is entitled to a day off with public holiday pay. See an employment lawyer to discuss how this is calculated.

If Christmas falls on a Monday, you are still entitled to pay your employee for Christmas day. Alternatively, you can agree in writing with your employee that he or she work on the holiday and he or she will be paid public holiday pay plus premium pay for the hours worked.  Premium pay is time and a half. If your employee receives premium pay for working on a public holiday, the hours are not taken into consideration in calculating any overtime pay.  The alternative is to pay the employee their regular rate for hours worked on the holiday, plus they will receive another day off with public holiday pay. Regular wages does not include any overtime or premium pay payable to an employee.

If the public holiday falls on a day that would not ordinarily be a working day, then you need to substitute another day that would ordinarily be a working day your employee to take off work and receive public holiday pay. If Christmas falls on a Saturday, then you would give your employee the monday off.

Generally, employees qualify for the public holiday entitlement unless they fail without reasonable cause to work all of their last regularly scheduled day of work before the public holiday or all of their first regularly scheduled day of work after the public holiday (this is called the “Last and First Rule”.) The “last regularly scheduled day of work before the public holiday” and the “first regularly scheduled day of work after the public holiday” do not have to be the days right before and right after the holiday. For example, an employee might not be scheduled to work the day right before or after the holiday. As long as the employee works all of his or her last regularly scheduled shift before the holiday and all of the first one after it, or provides reasonable cause for not working either of those days, he or she meets this qualifying criterion.

Public holiday pay will also fail if yrou employees, without reasonable cause to work their entire shift on the public holiday if they agreed to or were required to work that day.

What happens if you don’t pay the publich holiday pay?
If you don’t pay your public holiday pay, or pay it incorrectly, your employee has the right to file a claim that their minimum standards have been violated.  An employment standards office will investigate and you may be ordered to pay a minimum amount to the Ministry of Labour (up to $10,000) until the issues is cleared up either by the employment standards office not finding a contravention, or your appealing to the Labour Relations Board to have a Vice Chair hear the case.

If you have been served with complaint for  violation of the Ontario Employment Standards Act,  please do not hesitate to contact Matt Lalande at matt@employment-law.ca. This is not legal advice.

You can read more by clicking here.

Minimum Wage Rates