How to respond to employee complaints to the Ministry of Labour
By Alex Minkin
Suppose that your company is contacted by an employment standards officer from Ontario’s Ministry of Labour, Immigration, Training and Skills Development. The officer is investigating a complaint from a former employee, alleging that they are owed outstanding wages and overtime, and were provided insufficient notice of termination. What can you do, and how do you respond?
In Ontario, an employee has two avenues for bringing claims relating to alleged breaches of the Employment Standards Act, 2000 (ESA), including an alleged failure to pay wages or a wrongful dismissal claim. The first avenue is a civil claim in the Ontario Superior Court of Justice, which would follow the same procedure as any other civil lawsuit. The second avenue is to file a complaint with the Ministry of Labour, Immigration, Training and Skills Development. However, the employee can only elect one of the options, and cannot pursue both.
Sections 97, 98, 91
Section 97 of the ESA provides that an employee who files a complaint with the ministry cannot commence a civil proceeding with respect to the same matter, unless their complaint is withdrawn within two weeks after it is filed. Similarly, Section 98 of the ESA provides that an employee who has commenced a civil proceeding cannot file a complaint with the ministry with respect to the same matter.
One major difference between these two options is that a complaint to the ministry will deal only with the employer’s obligations under the ESA, and not under common law. For instance, a complaint to the ministry for wrongful dismissal will deal with only the minimum statutory notice under the ESA, and not common law notice, which is usually much greater and can be considered by the courts in a civil lawsuit.
Therefore, if an employee elects to file a complaint with the ministry, they may be permanently giving up their right to claim their full entitlements under common law.
After a complaint is filed with the ministry, an employment standards officer will be assigned to the matter, who will contact the employer to receive their position. This is usually done in a summary manner, and a decision on the complaint will be made without a hearing and often without receiving extensive submissions from the parties.
Employment standards officers have significant powers under the ESA. Section 91 provides that officer may, without a warrant, enter and inspect any place in order to conduct an inspection or investigate a possible contravention of the ESA. The officer may demand documents and records and remove them from the company’s premises. The officer is not limited to the specific complaint made by the employee, and can initiate inspections and investigations related to any other alleged statutory violation.
Order to Pay
If the officer determines that the company has contravened the ESA, they will issue an Order to Pay, requiring the company to pay the ordered amounts to the director of employment standards in trust, which will include administrative costs of an additional 10 per cent. If the payment is not made within 30 days, the ministry may add collection fees and take other enforcement actions.
Therefore, if your company is contacted by an employment standards officer investigating an employee’s complaint, the first step is to prepare written submissions to the officer within the time limit provided, in order to convince the officer that the complaint does not have merit. We recommend retaining a lawyer at an early stage to assist with preparing these submissions.
However, if the officer rules in favour of the employee and issues an Order to Pay, that does not necessarily end the matter. The employer may bring an Application for Review to the Ontario Labour Relations Board (OLRB) within 30 days of service of the order.
Application for Review
If the application is brought by the employer to review an Order to Pay, the employer must pay the full amount of the order to the director of employment standards in trust, prior to filing the application. The funds will be held as a credit towards the employee’s complaint, and will only be released upon the OLRB’s determination of the matter or a settlement by the parties.
In the recent decision of 2447986 Ontario Inc. (IGTA Security Systems) v Alexandr Reaboi, the OLRB ruled that it has no discretion to relieve the employer from the requirement of first paying the funds into trust, and that an Application for Review cannot be processed if the full payment has not been made, regardless of the reason.
An employee may also bring an Application for Review if their complaint is refused by the employment standards officer. In such cases, there is no requirement for the employee to pay funds into trust.
In an Application for Review, the OLRB will first hold a mediation with the parties to see if the matter can be resolved. If mediation is unsuccessful, the OLRB will hold a hearing, and the parties will be provided a full opportunity to present their evidence and make their submissions. The hearing is similar in many ways to a trial, with the opportunity to cross-examine the opposing party’s witness.
Responding to an employee’s complaint to the ministry may end up being a complicated process. We recommend speaking to a lawyer at an early stage so that your position is properly presented to the officer investigating the complaint. If the officer rules in your favour, it may mean that the matter is resolved without further time and expense.
