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XXII. Filing an ES Claim

Most employees covered under the Employment Standards Act, 2000 (ESA) may file a claim with the Ministry of Labour if they believe their employer is not complying with the law.

Employees who believe that their employer, or former employer, has not followed the ESA are encouraged, when appropriate, to discuss the matter with their employer, or with their union representative, if they have one.

The employee can phone the Employment Standards Information Centre for assistance to identify and define issues, and ways to resolve them at:

(416) 326-7160
toll free in Ontario at 1-800-531-5551
TTY (for hearing impaired) 1-866-567-8893

A Ministry of Labour self-help kit is available to help employees and employers identify and resolve problems related to unpaid wages, vacation pay, public holiday pay, overtime, minimum wage, termination notice or pay in lieu, and severance pay. The kit includes an information sheet for the employer to explain how the kit is used, a "request for payment" form summarizing alleged entitlements identified through the use of the kit, and worksheets for assessing wage related entitlements.

The self-help kit is available on the Ministry of Labour website.

The employee may also choose to send the employer a registered letter explaining the problem and asking to have it resolved. Employees and employers should keep a copy of correspondence and proof of its delivery such as a registered mail receipt. If the employee and employer are unable to resolve the matter, the employee may choose to file a claim.

Filing a Claim

To file a claim, an employee must complete the claim form, which can be obtained from the Ministry of Labour's website, www.labour.gov.on.ca, by mail through the Employment Standards Information Centre, and in person at a ServiceOntario Centre. Completed claim forms can be:

submitted online
mailed to:
The Provincial Claims Centre--Ministry of Labour
70 Foster Drive, Suite 480, Roberta Bondar Place
Sault Ste. Marie, ON P6A 6V4

or
faxed, toll free, to 1-888-252-4684.

When an Employee Cannot File a Claim

There are two situations in which an employee who is covered by the ESA cannot file a claim with the Ministry of Labour:

When an employee is represented by a trade union

Generally speaking, employees represented by a union cannot file a claim. 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.
When an employee has filed a claim in a court of law

An employee cannot file a claim with the Ministry of Labour for a failure to pay wages or discrimination in benefit plans if the employee has already started a court action against the employer for the same matter.

In addition, an employee who has started a court action for wrongful dismissal cannot file a claim for termination or severance pay under the ESA with respect to the same termination/severance of employment.

An employee with questions about whether it is best to file a claim or to sue the employer in court may wish to consult a lawyer before filing a claim.

Employees also need to be aware that if they have filed a claim with the Ministry of Labour for unpaid wages, benefits, or termination or severance pay that he or she must withdraw the claim within two weeks of the date of filing it with the Ministry if the employee intends to start a court action with respect to those unpaid wages, benefits, or alleged wrongful dismissal This applies even if the employee's claim is for more than the $10,000 maximum wages that an employer can be ordered to pay by an employment standards officer.

Note that the restrictions on pursuing a claim through both the courts and with the Ministry of Labour do not apply to claims filed with the Ministry of Labour for compensation or reinstatement (for example, where a claim is filed for a violation of the pregnancy, parental, emergency, family medical leave, or reprisal provisions of the ESA).

What is Needed to File a Claim

In completing the claim form, the employee must give details about:

which minimum standards were violated (i.e., the employer did not pay overtime; the employee did not receive severance pay)
when it happened (dates and times)
what is being claimed (including dollar amounts, if applicable)

In addition, the employee will be asked to give information about the employer, such as:

the employer's name, full address and telephone numbers
whether the employer is still operating
whether the employer conducts business at other establishments or operates using any other name(s).

During the investigation of a claim, the employee will be asked to provide some or all of the following:

copies of pay stubs or paycheques
copies of T4 slips
a copy of his or her written notice of termination (if the employee's employment was terminated and/or severed by the employer and notice was given)
a copy of the employee's Record of Employment, if received
a copy of the contract of employment, if there is one
copies of any warning letters or notices received
a record of the hours worked if available (i.e., a calendar record, time sheets, attendance records, diary or notes).

Maximum Amount of Money an Employer Can Be Ordered to Pay

With some exceptions, $10,000 is the maximum amount the Ministry of Labour can order an employer to pay an employee. However, this limit does not apply to claims under those parts of the ESA in which reinstatement and/or compensation can be ordered (for example, parts dealing with leaves of absence, the right of an employee not to be penalized for exercising his or her rights under the ESA, such as a retail employee's right to refuse to work a public holiday).

Time Limits Regarding Claims

Six month/one year time limit for recovering wages:

With two exceptions, an employee must file a written claim with the Ministry of Labour within six months of the date the wages became due in order to try to recover them.

The first exception to this rule deals with vacation pay. Unpaid vacation pay may be recovered if the claim is filed within 12 months of the date the vacation pay came due (rather than 6 months).
The second exception is where an employment standards officer finds that an employer has violated the same section of the ESA more than once, with respect to an employee. If at least one of the violations occurred in the six-month period before the claim was filed, the employee will be entitled to recover the wages due for all violations of the same provision that occurred in the 12-month period before the claim was filed.

When wages are due

Generally, wages, except vacation pay, become due on the employee's regular pay day. However, if the employment was terminated by the employer, all the wages owed to the employee (including any unpaid vacation pay as of the date of termination) are due either within seven days of the termination, or on what would have been the employee's next regular pay day, whichever is later.

A typical case

Nhan was employed as a technician for just over three years. His employment was terminated because of a shortage of work on February 1. His next regular pay day would have fallen on February 12. Nhan was given proper notice of his termination but was not paid his last week's wages. On August 30 he filed a claim for those wages. Nhan is not able to recover his last week's wages through the Ministry of Labour because those wages became due more than six months before the date he filed his claim. Nhan might, however, be able to take court action to try to recover them.

When there are repeated violations

Jenny was employed in a restaurant for just over one year and was not paid for public holidays. She quit her job and filed a claim with the ministry on January 5. In the six months before her complaint was filed, Jenny should have been paid public holiday pay for Labour Day, Thanksgiving Day, Christmas Day and New Year's Day.

The employer repeatedly violated the public holiday sections of the ESA by not paying Jenny public holiday pay and at least one violation of the public holiday provisions occurred within six months of the date Jenny filed her claim.

Because of this, the employment standards investigation is not limited to recovering wages that became due in the six-month period before the date her claim was filed (January 5). It will be extended to recover wages that became due to Jenny within 12 months from the date she filed her claim. As a result, Jenny is also entitled to public holiday pay for Canada Day, Victoria Day and Good Friday.

Two-year time limit for filing a claim:

The above-mentioned limitations on recovery only apply to an employee's ability to seek recovery of unpaid wages, including vacation pay.

In some cases, the employee has two years after a violation to file a claim with the Ministry. This two-year time limit applies where:

The employee believes an employer has violated a non-monetary section of the ESA for example, the employer did not give proper meal breaks, failed to provide wage statements, or if the violation relates to leaves of absence, lie detectors and retail business employees' rights; or
The employee is seeking compensation and/or reinstatement in cases where for example, the employer has penalized or threatened to penalize an employee for exercising rights under the ESA.

Extending Time Limits:

Although the limitations on recovery of wages and filing a claim are set out in the legislation and mandatory, it may be possible to make a claim that would otherwise be outside the applicable time limit if:

an employee has been misled as to his or her entitlements under the ESA by his or her employer and for that reason delayed in filing his or her claim; and
the employee took prompt steps to file a claim after he or she found out that what the employer said about the ESA entitlement was inaccurate.

For example

An employer has stated that no overtime is payable under the ESA to an employee in certain circumstances and the employee relies upon the employer's statement and does not file a claim for overtime until after he or she finds out from another source that overtime is payable under the Act. In such a case, an employment standards officer may rule that the time limit that would otherwise not allow all or a portion of the claim should be extended because the delay in filing the claim was caused by the incorrect statement of the employer about the employee's ESA entitlements.

Investigation, Enforcement and Appeals

Once a claim has been filed, it is assigned to an employment standards officer for investigation. (For details about: how an investigation is conducted; the kinds of actions an employment standards officer or the ministry can take; and how an employee can appeal an officer's decision, refer to the section on the "Role of the Ministry of Labour".)

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