On November 29, the Open for Business Act was proclaimed into force in Ontario. Schedule 9 of the Act amends certain provisions of the Employment Standards Act, 2000 (the ESA) allowing for changes to the employment standards claim process to be implemented on January 19, 2011.
The amendments are aimed at reducing and eliminating the current backlog of employment standards complaints by encouraging early resolution. This is to be accomplished in one of three ways: (i) completion of certain steps by a complainant before assignment of the complaint to an Employment Standards Officer; (ii) an Employment Standards Officer’s power to assist parties to settle complaints; and (iii) an Employment Standards Officer’s power to decide complaints where a party fails to discharge certain obligations.
- Completion of steps before assignment of complaint to an Employment Standards Officer (Officer)
Previously, once a complaint was filed it was immediately assigned to an Officer for investigation. Now, a complainant must complete the following steps before his or her complaint will be assigned to an Officer:
- Notify his or her employer of the complainant’s belief that his or her rights under the ESA have been, or are being, violated by the employer. This notification does not have to be done face-to-face, as the complainant may contact the employer through regular mail, email, fax or phone.
- Inform the Director of Employment Standards in writing that he or she has notified the employer of his or her position that their ESA rights have been or are being violated, and advise the Director as to the information provided in the notice given to the employer; the way the information was provided; and the employer’s response, if any.
- Provide the Director with any evidence and/or written information the Director requires of the complainant.
If the complainant fails to do so, the Director will inform the complainant that the complaint has not been assigned to an Officer. If the above criteria are still not met within six months of the filing of the complaint, an Officer shall be deemed to have refused to issue an order in respect of the complaint.
- Power of Officer to settle complaints
Under the amendments, an Officer is allowed to assist employers and employees reach a settlement. This process is completely voluntary, however if a settlement is reached and the parties involved fulfil their respective obligations, the complaint is deemed to have been withdrawn and the Officer’s investigation is terminated. In addition, any proceeding respecting the complaint is terminated, other than a prosecution.
- Power of Officer to decide a complaint when a party fails to discharge certain obligations
The amendments give an Officer additional powers of decision-making meetings. Under the current ESA regime, an Officer may require that the parties attend a decision-making meeting. Parties are given 15 days written notice, and an Officer may instruct the parties to make various documents and records available for the meeting. In addition to these powers, the new amendments permit an Officer to require that parties provide evidence or submissions within a specified timeline set out in the notice. If a party fails to abide by these obligations, or fails to attend the decision-making meeting, the Officer may rule on the complaint in the absence of the party and/or the submissions or evidence requested. Officers will consider any evidence or submissions of parties up to or during the meeting in making their decision, along with any other considerations they deem relevant.
While their ultimate effectiveness remains to be seen, the amendments have the potential to reduce the backlog currently experienced by the Ministry of Labour. Of potential benefit to employers is the mechanism for the early resolution of employments standards disputes. However, we counsel employers to thoughtfully respond to employee’s concerns regarding their statutory entitlements, so as to avoid unnecessary ESA complaints.