What is the “ESA”?
The ESA is the Employment Standards Act, 2000, which sets out the rights and responsibilities of employees and employers and minimum standards for conditions of employment in most workplaces in Ontario. The ESA establishes basic employer obligations and employee rights with respect to rates of pay, hours of work and overtime, vacations, public holidays, various forms of leave and more. The ESA contains some of the rules affecting work in Ontario. The ESA is enforced by officers who work for the Employment Standards Program, which is part of the Ministry of Labour.
What does the ESA 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. No employee can agree to waive or give up their rights under the ESA (for example, the right to receive overtime pay or public holiday pay). Any such agreement is null and void. 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
- Termination and Severance of Employment
- Temporary Layoffs
- Equal Pay for Equal Work
- Temporary Help Agencies
- Enforcement and Compliance
Who are covered and not covered by the ESA?
Most employees and employers in Ontario are covered by the ESA. However, the ESA does not apply to certain individuals and persons or organizations for whom they work, including:
- Those in sectors that fall under federal jurisdiction, such as airlines, banks, the federal civil service, post offices, radio and television stations and inter-provincial railways
- Individuals performing work in a work experience program authorized by a school board, college of applied arts and technology, or university
- People who do community participation under the Ontario Works Act, 1997
- Police officers (except the Lie Detectors part of the ESA, which does apply)
- Inmates taking part in work programs, or people who perform work as part of a sentence or order of a court
- People who hold political, judicial, religious or trade union offices.
What the Labour Relations Act is about?
The Labour Relations Act, 1995 governs both the process by which a trade union acquires bargaining rights and the procedures by which trade unions and employers engage in collective bargaining; the Act applies primarily to workplaces in the private sector, but also applies to certain parts of the public sector (municipal workers, hospital employees, Ontario Hydro, etc.) with some modifications.
What are other workplace-related laws?
The other provincial and federal workplace-related laws include:
- The Occupational Health and Safety Act
- The Workplace Safety and Insurance Act
- The Pay Equity Act
- The Human Rights Code
- The Canada Pension Plan
- The Ontario Works Act
If an employee is off sick, can he or she be fired?
If the sick day is a personal emergency leave day under the ESA, the employee cannot be penalized for taking the day off. Personal emergency leave days are job-protected under the Act.
Can employees take time off for doctor’s appointments?
An employee whose employer regularly employees 50 or more employees is entitled to 10 personal emergency leave days per year. Personal Emergency leave days can be used to attend a doctor’s appointment if the appointment is because of an illness, injury or medical emergency. This leave is job-protected.
Do employees have to give notice to their employers when they quit their job?
The ESA does not address the issue of employees giving notice to the employer when they quit their job, except under the pregnancy and parental leave provisions, which require that employees give notice to their employer if they are not returning, and in cases where the employer is terminating the employment of 50 or more employees in a four-week period. Employees may be required to provide their employer with notice that they are quitting under other laws
Can employees choose to take their employer to court for wrongful dismissal rather than filing a claim with the Ministry of Labour?
An employee can choose to sue an employer in a court of law for wrongful dismissal. However, an employee can’t sue an employer for wrongful dismissal and have a claim for termination or severance pay investigated by the ministry for the same termination or severance. The employee must choose one procedure or the other.
What does the law say about exceeding limits on hours of work?
In Ontario, a written agreement is required for exceeding limits on hours of work. An employer and an employee can agree in writing that the employee will work more than 8 hours a day or 48 hours a week. These agreements are valid only if, prior to making the agreement, the employer gives the employee the Information Sheet for Employees about Hours of Work and Overtime Pay prepared by the Director of Employment Standards that describes the hours of work and overtime rules in the ESA. In order to be valid, the agreement must also include a statement in which the employee acknowledges receipt of the Information Sheet. In most cases, an employee can cancel an agreement to work more hours by giving the employer two weeks’ written notice and an employer can cancel the agreement by providing reasonable notice. Once the agreement is revoked an employee is not permitted to work excess daily or weekly hours even if the employer has an approval from the Director of Employment Standards for excess weekly hours. An agreement between an employee and an employer to work additional daily or weekly hours, or an approval from the Director of Employment Standards for excess weekly hours, does not relieve an employer from the requirement to pay overtime.
What does the law say about coffee breaks?
An employee must not work for more than five hours in a row without getting a 30-minute eating period (meal break) free from work. The law does not require an employer to provide any breaks in addition to this eating period. However, if the employer does provide another type of a break, such as a coffee break, and the employee must remain at his or her workplace during the break, the employee must be paid at least the minimum wage for that time.
Is the employer required to provide a ride home if an employee works late?
Employers have no obligation to provide transportation to or from work under the ESA, although individual contracts of employment or a collective agreement may require it.
Do employers have the right to schedule an employee to work an overnight shift alone?
The ESA does not put restrictions on the timing of an employee’s shift, other than the restrictions relating to hours of work (i.e., the maximum length of a work day, certain hours employees are entitled to be free of work, eating periods).
Do employees get paid more for working Sundays, or for working late at night?
There is nothing in the ESA that requires employees to be paid more for working Sundays, or late at night.
Can an employee agree not to receive his or her rights under the ESA?
No employee can agree to give up his or her rights under the ESA (for example, the right to personal emergency leave). Any such agreement is invalid.
My employer has charged me for the uniform that I have to ware at work. Was he right?
The employer is responsible for making decisions about dress codes, uniforms and other clothing requirements. An employer may make a deduction from wages to cover the cost of a uniform, or other clothing requirements if the employee has signed a specific written authorization permitting the deduction and setting out its amount. However, a dress code cannot violate a collective agreement at the workplace, the Ontario Human Rights Code or the rules under the Occupational Health and Safety Act.
Are pensions covered by the ESA?
The ESA does not require employers to provide pension plans. However, if they do, they are required to allow employees to continue participating in the plans (and certain other benefit plans, if these are provided) when on pregnancy, parental, personal emergency, family medical or declared emergency leave under the Act. In addition, the ESA does not allow employers to discriminate on the basis of age, sex, marital status or same-sex partnership status in the provision of benefit plans, including pension plans, unless this is allowed by the Benefit Plans regulation under the ESA.
What if the employer does not follow the ESA?
If an employee thinks the employer is not complying with the ESA, he or she can call the Employment Standards Information Centre at 416-326-7160 or toll free at 1-800-531-5551 for more information about the ESA and how to file a complaint. Complaints are investigated by an employment standards officer who can, if necessary, make orders against an employer-including an order to comply with the ESA. The ministry has a number of other options to enforce the ESA, including requesting voluntary compliance, issuing an order to pay wages, an order to reinstate and/or compensate, a notice of contravention, or issuing a ticket or otherwise prosecuting the employer under the Provincial Offences Act.
I think my employer has broken some of the employment standards. How I can make a claim?
There are 4 steps that must be followed in order to file a claim.
Step 1: Contact your employer
Step 2: Collect important documents
Step 3: Fill out the Claim Form
Step 4: The Claim Form Submission
It is recommended that an employee file his or her claim submission online. They will receive a claim submission number immediately. You may also file your claim submission:
- By fax at 1-888-252-4684.
- In person at a ServiceOntario Centre (1-800-267-8097).
- By mail to:
Employees can get a copy of the Employment Standards Claim Form:
- on the Ministry of Labour’s website (www.labour.gov.on.ca)
- by mail through ServiceOntario Publications; or
- in person at a ServiceOntario Centre.
The Ministry of Labour has published a Claim Form Guide with detailed instructions about the completion of the Claim Form (http://www.labour.gov.on.ca/english/es/pubs/claim/index.php)
What are considered good reasons for not contacting my employer?
On the Claim Form an employee can request an exemption from the requirement to contact his or her employer. The Claim Form provides a list of possible acceptable reasons for doing so, including a language barrier, fear to do so and employer closure or bankruptcy. There are also possible exemptions for certain employees such as live-in caregivers and young employees. The Claim Form will also allow employees to give an explanation of other reasons which they believe should be considered for exemption.
When an employee cannot file a claim?
An employee who is covered by the ESA cannot file a claim with the Ministry of Labour if:
- an employee is represented by a trade union: these employees – if they are covered by a collective agreement and whether or not they are actually members of the union – must use the grievance procedure contained in the collective agreement between the employer and the trade union.
- an employee has already filed a claim in a court of law
What is Ontario’s Family Medical Leave?
With Ontario’s Family Medical Leave, an employee is eligible for up to eight weeks job-protected leave from work in the event of a loved one becoming gravely ill to whom a qualified medical practitioner has issued a certificate indicating that he or she has a serious medical condition with a significant risk of death occurring within a period of 26 weeks. So you can stop work and care for them, knowing your job will be there when you get back. The eight weeks of a Family Medical Leave do not have to be taken consecutively but an employee may only take a leave in periods of entire weeks within a specified 26-week period.
Who can take family medical leave?
All employees, whether fulltime or part-time, permanent or contract, who are covered by the Employment Standards Act, 2000 are entitled to Family Medical Leave.
I need to take care of my family member who is seriously ill. Is a family medical leaf paid?
Family medical leave is unpaid, job-protected leave of up to eight (8) weeks in a 26 week period. Family medical leave may be taken to provide care or support to certain family members and people who consider the employee to be like a family member in respect of whom a qualified health practitioner has issued a certificate stating that he or she has a serious illness with a significant risk of death occurring within a period of 26 weeks. Some employers have paid benefit plans for sickness, bereavement and other leaves of absence. These plans aren’t required by the ESA.
Who can take a personal emergency leave?
Employees who work for employers that regularly employ at least 50 employees are entitled to personal emergency leave in certain situations. Personal emergency leave is unpaid, job-protected leave of up to 10 days each year. It may be taken in the case of a personal illness, injury or medical emergency, or a death, illness, injury, medical emergency of, or urgent matter relating to, certain relatives. An employer is allowed to ask an employee to provide evidence that he or she is eligible for a personal emergency leave. The employee is required to provide evidence that is reasonable in the circumstances.
Are there specified family members for whom a family medical leave may be taken?
The specified individuals for whom a family medical leave may be taken are:
- the employee’s spouse (including same-sex spouse)
- a parent, step-parent or foster parent of the employee or the employee’s spouse
- a child, step-child or foster child of the employee or the employee’s spouse
- a brother, step-brother, sister, or step-sister of the employee
- a grandparent or step-grandparent of the employee or of the employee’s spouse
- a grandchild or step-grandchild of the employee or of the employee’s spouse
- a brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee
- a son-in-law or daughter-in-law of the employee or of the employee’s spouse
- an uncle or aunt of the employee or of the employee’s spouse
- the nephew or niece of the employee or of the employee’s spouse
- the spouse of the employee’s grandchild, uncle, aunt, nephew or niece
- Family medical leave may also be taken for a person who considers the employee to be like a family member. Employees wishing to take a family medical leave for a person in this category must provide their employer, if requested, with a completed copy of the Compassionate Care Benefits Attestation form, available from Human Resources and Skills Development Canada, whether or not they are making an application for EI Compassionate Care Benefits or are required to complete the form to obtain such benefits.
I am a foreign live-in nanny. Is there any law in Canada that protects my rights?
Yes, there is. The Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others), 2009 (EPFNA) came into force on March 22, 2010. The EPFNA applies to foreign nationals who are employed or attempting to find employment in Ontario as live-in caregivers, to employers of foreign nationals working as live-in caregivers in Ontario, to persons who act as recruiters in connection with the employment of foreign national live-in caregivers in Ontario, and to persons acting on behalf of these employers or recruiters.
What key rights and obligations does the Act create?
As a brief overview, the EPFNA:
- prohibits recruiters from charging any fees to foreign live-in caregivers, either directly or indirectly.
- prevents employers from recovering placement costs from the live-in caregiver.
- prohibits employers and recruiters from taking a live-in caregiver’s property, including documents such as a passport or work permit.
- prohibits a recruiter, an employer, or a person acting on their behalf from intimidating or penalizing a live-in caregiver for asking about or asserting their rights under the Act.
- requires recruiters and, in some situations, employers to distribute information sheets to live-in caregivers setting out their rights under the EPFNA and those provisions of the Employment Standards Act, 2000 (ESA) considered to be of particular relevance.
What do I do if I think someone has violated this Act?
If you are covered by the EPFNA and you want to make a complaint, you can get a claim form from the Ministry of Labour website or from a Service Ontario Centre and mail or fax it to the address or fax number shown on the form. Please note the EPFNA has its own claim form distinct from that which is used for ESA claims.
If you choose not to file a claim, but would like to leave a “tip” (provide information to the ministry about possible violation), contact us online or call 416–326–7160 or 1–800–531–5551 (Toll–free). The information provided will be considered for an appropriate response.
Are there time limits for filing a claim?
Yes, you can file a claim within three and one half (3.5) years from the date the violation occurred.
Are there provisions in the Act to ensure that employees who assert their rights under the legislation are not penalized?
Yes. A recruiter, an employer, or a person who acts on their behalf is prohibited from intimidating or penalizing a live-in caregiver because the caregiver:
- asks any person to comply with the legislation,
- asks about his or her rights under the legislation,
- asserts or attempts to assert a right under the legislation, or
- gives information to an employment standards officer, testifies or participates in a proceeding under the legislation.
- files a complaint under the legislation.
What is a collective agreement?
A collective agreement is a written contract of employment covering a group of employees who are represented by a trade union. This agreement contains provisions governing the terms and conditions of employment. It also contains the rights, privileges and duties of the employer, the trade union and the employees.
What is collective bargaining?
Collective bargaining is a process in which a trade union and an employer negotiate a first collective agreement or the renewal of a previous collective agreement. In this process, the parties usually focus on such issues as wages, working conditions, grievance procedures and fringe benefits.
How are negotiations for a collective agreement begun?
If a trade union has just been certified, it will then give the employer written notice of its desire to bargain. If the employer and the union are already bound by a collective agreement, then either party may give notice to bargain within the 90 days before the agreement is due to expire, or during any other time period specifically set out in the agreement. In either case, the union and the employer must meet within 15 days from the giving of notice, unless they agree to some other time period.
What happens if, during negotiations, the employer and the union cannot agree on the terms of a collective agreement?
Either the employer or the union may ask the Minister of Labour to appoint a conciliation officer. This officer will then try to help them reach an agreement.
What is Conciliation?
Conciliation is a process by which a trade union or an employer can ask the Ministry of Labour for help in resolving their differences so that they can reach a collective agreement. Either party may apply to the Ministry. If parties are in negotiations, conciliation is mandatory in the sense that the parties must use the government’s conciliation services before they can get into a position to engage in a strike or lock-out.
What if the employer and the union cannot reach agreement in conciliation?
The conciliation officer informs the Minister of Labour that a collective agreement was unable to be effected. The Minister would then generally issue a notice informing the union and the employer that he or she “does not consider it advisable to appoint a conciliation board” (cl. 21(b) of the Act). This notice is known colloquially as the “no board”. [Conciliation boards are exceedingly rare. They have not been appointed since the 1960s.]
What further assistance is available to the bargaining parties after a “no board” gets issued?
If the parties have not reached a settlement in the Conciliation stage, the Ministry offers to provide the services of a Mediator who will confer with the parties and endeavour to effect a collective agreement. Mediation is also a process by which a third party attempts to help a trade union and an employer in reaching a collective agreement. Since mediation is discretionary, the service is only used if both parties are amenable to it.
What is a strike?
Section 1 (1) of the Labour Relations Act, 1995 defines a strike as a cessation of work, a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding, or a slow-down or other concerted activity on the part of employees designed to restrict or limit output.
What is a lock-out?
Section 1 (1) of the Labour Relations Act, 1995 defines a lock-out as the closing of a place of employment, a suspension of work or a refusal by an employer to continue to employ a number of employees, with a view to compel or induce the employees, or to aid another employer to compel or induce that employer’s employees, to refrain from exercising any rights or privileges under this Act or to agree to provisions or changes in provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer, an employers’ organization, the trade union, or the employees.
When are the parties in a legal position to strike or lock-out?
A strike or lock-out is legal beginning on the 17th day after the Minister mails the “no board” notice. For example, if the notice was mailed on August 1, the parties can legally strike or lock out on August 18. There can be some confusion about this because the Act states that the period is 14 days after the release of a notice. The notice is not deemed to have been released, however, until the second day after it was mailed. This extends the period to 16 days, and since they must be ‘clear’ days, it means that a strike cannot legally start until the beginning of the 17th day. (See Sections 79(2) (b) and 122(2) (a) of the Labour Relations Act, 1995). In addition to the above, parties covered by the Crown Employees Collective Bargaining Act (CECBA) must have negotiated an essential services agreement before a strike can be lawfully initiated.
Do all employees covered by the Labour Relations Act, 1995 have the right to strike?
No. Employees of hospitals and nursing homes do not have the right to strike. Instead, unresolved bargaining issues are settled by binding arbitration. They are covered by the Hospital Labour Disputes Arbitration Act (HLDAA). The Labour Relations Act, 1995 also gives the union and the employer the right to agree voluntarily that the matters about which they are negotiating be referred to an arbitrator or board of arbitration, who will decide, after hearing arguments from both sides, what the terms of the collective agreement will be (See Section 40 of the Labour Relations Act, 1995). Once this agreement is reached, neither the union nor the employer is allowed to change its mind and engage in a strike or a lock-out.
What does “grievance” mean as the term is used in labour relations?
A grievance is a written complaint alleging a contravention of the collective agreement.
What if an employee or a trade union feels the employer is not following the terms of the collective agreement, or if there is a disagreement about the meaning of part of the collective agreement?
In such a situation, the employee or the union may file a grievance. The grievance procedure is set out in the collective agreement itself. Normally, it involves three or four steps. At each step more senior people from both the union and the employer try to settle the grievance. The collective agreement will often provide for a time limit within which the grievance must be commenced (usually a certain number of days after the event giving rise to the grievance). If the grievance is not filed within this period, it may be dismissed. An arbitrator has the power to extend the time limit, but only if the other side’s position will not be prejudiced, and if the collective agreement does not forbid such an extension (See Section 48 (16) of the Labour Relations Act, 1995).
What if the union and the employer cannot settle a grievance?
The grievance must then be referred to an arbitrator or board of arbitration. The method for doing this should also be set out in the collective agreement. An arbitrator performs a function similar to a judge or court by making a binding decision resolving the matters in dispute between the parties. Occasionally, collective agreements provide that the grievances be heard and decided by one person acting as a sole arbitrator. More common, however, is the appointment of a three-person arbitration board. The union and the employer each select a member, and those two members, in turn, agree on a chair (See Section 48 of the Labour Relations Act, 1995).
If you don’t find a question you want to ask, please contact CP Paralegal Services:3768 Bathurst Street, Suite 205 Toronto ON M3H 3M7 Phone: 416-671-7670 Email: email@example.com
CP Paralegal Services provides with paralegal services in Toronto, Aurora, Barrie, Brampton, Burlington, Caledon, Collingwood, Maple, Markham, Mississauga, Newmarket, Oakville, Orillia, Richmond Hill, Scarborough, St. Catharines, Thornhill, and Vaughan.