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XXIII. Role of the Ministry of Labour

The Ministry of Labour administers the Employment Standards Act, 2000 (ESA) and regulations by:

• Promoting voluntary compliance
• conducting proactive inspections of payroll records and workplace practices to ensure the ESA is being followed.
• investigating possible violations of the ESA and its regulations
• resolving complaints
• enforcing the ESA and its regulations

Voluntary Compliance

The ministry provides a wide range of publications and services to help employees and employers understand their rights and obligations. These include an employment standards poster, which employers are required to post in their workplaces, and four brochures published in 23 languages; a self-help kit to help employees and employers identify and resolve problems related to wage entitlements, and fact sheets on minimum standards.

The ministry is also involved in outreach initiatives that provide information seminars and workshops for employer groups, employment counsellors, and professional associations.

Proactive Inspections

Employment standards officers conduct proactive inspections of payroll and other records, including a review of employment practices. An officer conducting a proactive inspection will usually visit the employer's premises. Officers may notify the employer in writing before the inspection, but are not required to. A notice may include a list of records and other documents the employer must provide at the inspection. The employer is required to produce the records requested and must answer questions that the officer feels may be relevant.

An officer is permitted to take away records or other information for review and copying. The employer is welcome to ask questions, and to request further information. An employment standards officer can also require the employer to attend a fact-finding meeting if, during the inspection, he or she believes the ESA has been contravened.

Investigating Violations

The employment standards officer conducts investigations by telephone, through written correspondence, by visiting the employer's premises or by requiring the employee and/or the employer to attend a fact-finding meeting. During an investigation, both parties have the opportunity to present the facts and arguments they believe are relevant to their case.

After investigating a claim, the employment standards officer makes a decision about whether the employer has or has not complied with the ESA . If the officer finds that the employer has complied with the ESA:

• In cases where an employee filed a claim with the Ministry of Labour, the employee is notified in writing of this decision, and can apply for a review within 30 days.

If the officer finds that the employer has not complied with the ESA :

• The employer may resolve the issue by voluntarily complying with the officer's decision (i.e., by paying money that is owing to an employee or employees, or by adopting new, or changing existing, workplace practices).
• Officers can also require an employer to post a notice containing specific information about administration or enforcement of the ESA , and/or a copy of the report with the officer's findings.

Enforcement

If an employer is unwilling or unable to comply with an employment standards officer's decision, the officer can issue an order to pay wages to an employee or employees, a compliance order, a ticket, a notice of contravention or, for certain violations, an order to reinstate and/or compensate an employee.

These orders, tickets, and notice of contraventions are not mutually exclusive, and an officer can issue one or more of these orders and/or a notice of contravention in the course of an investigation or inspection.

Employers have the right to appeal an officer's order or a notice of contravention by making an application for review to the Ontario Labour Relations Board. The employer also has a number of options if an officer has issued a ticket.

Employees who have filed a claim have the right to appeal an order to pay wages or an order for compensation/reinstatement issued against their employer.

Order to Pay Wages

An order to pay wages is issued and served on an employer for wages owed to an employee or employees when an employer has refused or is unable to pay money found owing (except when there has been a bankruptcy).

The employer must comply with the order according to its terms or appeal the order within 30 days of the date the order is served. The order also requires the employer to pay an administrative fee of 10 per cent of the money that is owed, or $100.00, whichever is greater.

An order to pay wages cannot exceed $10,000.00 in wages for each employee covered by the order.

Compliance Order

An officer can issue a compliance order if the officer finds that the employer has contravened the ESA . The officer can order an employer or other person to stop the contravention and to take certain actions or stop taking certain actions. The order may also specify a date by which the employer or other person must comply with the order. These orders do not require payment of wages or compensation.

Tickets

Generally, tickets will be issued for less serious ESA violations, those that do not raise complex factual or legal issues. Tickets will be issued to the employer responsible for the offence. Ticketable offences fall into three categories:

• Administrative and enforcement offences (e.g. failure to retain records)
• Contraventions of wage-based employment standards (e.g. failure to pay overtime pay)
• Contraventions of non wage-based employment standards (e.g. requiring employees to work hours in excess of daily or weekly limits)

Tickets carry set fines of $295, with a victim fine surcharge added to each set fine plus court costs. If issued a ticket, an employer can choose to pay the fine or appear in a provincial court to dispute the offence.

Notice of Contravention

Employment standards officers have the power to issue notices of contravention with prescribed penalties when they believe someone has contravened a provision of the ESA. The penalty amount (payable to the "Minister of Finance") must be paid within 30 days of the date the notice was issued or the notice must be appealed within 30 days of the date it was served.

If an employer has contravened the mandatory posting requirements of the ESA or has failed to keep proper payroll records or to keep these records readily available for inspection by an employment standards officer, an officer can serve a notice of contravention with the following prescribed penalties:

• $250.00 for a first contravention;
• $500.00 for a second contravention in a three-year period;
• $1,000.00 for a third contravention in a three-year period.

If an employer is found in contravention of any other provision of the ESA, the penalties prescribed are:

• $250.00 for a first contravention multiplied by the number of employees affected;
• $500.00 for a second contravention in a three-year period multiplied by the number of employees affected;
• $1,000.00 for a third contravention in a three-year period multiplied by the number of employees affected.

Order to Compensate and/or Reinstate

In the case of some violations, an officer can make an order requiring an employer to reinstate or compensate an employee-or both. These violations include rights related to:

• pregnancy, parental, personal emergency leave, declared emergency leave, and family medical leave;
• lie detectors;
• the right to refuse Sunday work for retail workers;
• an employee being free from any form of reprisal for exercising his or her rights under the ESA.

Unlike an order to pay wages, an order to pay compensation is not limited to a maximum of $10,000.00. The officer can order compensation in the amount he or she finds owing to the employee.

Review (Appeal) of an officer's decision

Reviews are conducted by the Ontario Labour Relations Board, an independent, quasi-judicial tribunal. If employees or employers are not satisfied with an officer's decision, they may have the right to apply for a review (appeal). They must complete an Application for Review, setting out the facts and reasons for the application.

Employee Appeals

An employee who files a claim can appeal an officer's refusal to issue an Order to Pay Wages, an Order to Pay Compensation and/or Reinstate or a Compliance Order.

An employee for whom an order has been issued (whether or not he or she filed a claim) can appeal the amount of an officer's Order to Pay Wages or an officer's Order to Pay Compensation and/or Reinstate.

For employees, the Application for Review must be submitted within 30 days of the date the letter advising the employee that an order has been issued against the employer, or advising that the officer has refused to issue an order has been served on the employee.

Employer Appeals

For employers, the Application for Review must be submitted within 30 days of the date of being served with an order or notice.

Employers can apply for a review of a Compliance Order (these orders do not require payment of wages or compensation); a Notice of Contravention (the employer does not have to pay the amount of the penalty before the review hearing can proceed); an Order to Pay Wages (the employer must pay the full amount of the order plus the administrative fees to the Director of Employment Standards in trust); and an Order to Pay Compensation and/or Reinstate the employer must pay the amount of the order into trust up to a maximum of $10,000 to the Director of Employment Standards in trust).

Employers who receive a ticket must, within 15 days of the receipt of the ticket, choose one of the following:

• Plea guilty by paying the amount owing on the ticket
• Plea guilty with an explanation to a Justice of the Peace. The employer must bring their ticket to the Provincial Offences Court to provide explanations as to why the amount or time of payment of the ticket should be reduced.
• Plea not guilty and fill out the notice of intention to appear in court. The court will schedule a trial.

An employer who does not elect one of the above options within 15 days of receiving the ticket, will be deemed not to dispute the charge.

Payments

Payments must be made to the "Director of Employment Standards in trust" within 30 days of service of the order. It should be made by cheque, money order or letter of credit. A letter of credit must be in a form that is acceptable to the Director of Employment Standards. That is, it must:

• contain no conditions;
• expire no less than one year from the date it is issued;
• be prepared by a major Canadian bank;
• be for an amount that is five per cent greater than the order, to allow for accrued interest; and
• name the Director of Employment Standards as the beneficiary.

The payment should be forwarded to:

Director of Employment Standards
Ministry of Labour
400 University Avenue
9th Floor
Toronto, ON M7A 1T7

The ministry will issue a proof of payment to the employer, and will hold the money in trust.

The Review Process

When a request for a review is received, an officer of the Ontario Labour Relations Board (the "Board") will sometimes schedule a mediation meeting with the parties. No mediation meeting takes place in the case of a notice of contravention. If the matter is settled at this meeting, the minutes of the settlement are drawn up and signed off by the parties.

If the matter is not settled, or there has not been an attempt at mediation, a hearing is scheduled. The parties have a right to appear at the hearing, present their information in full and explain why they think the employment standards officer was right or wrong.

The Board can amend, overturn or uphold the employment standards officer's order or notice of contravention. The Board can also issue a new order.

After reviewing an employment standards officer's refusal to issue an order, the Board may issue an order or uphold the officer's refusal.

The Board's decisions are final and binding. Although an employer or employee may apply to Divisional Court for a Judicial Review, usually the court will not interfere with a decision as long as it meets a test of "reasonableness."

Collections

If an employer does not apply for a review within 30 days of the date the order was served or the notice of contravention was issued, the order or notice is final and binding on the employer. If the employer has not paid the required amount, the Director of Employment Standards forwards the file to a private collection agency.

The Director may authorize the collection agency to collect a reasonable fee and/or costs from the employer. Once a file is sent to a collection agency the employer must pay the collection agency fees and the ministry's administrative fees.

Prosecution

An employer or other person can be prosecuted and ordered to pay a fine and/or imprisoned for contravening the ESA. A court may also order the employer to take whatever action is necessary to remedy the violation, including paying wages and compensating and/or reinstating an employee.

It is an offence for an employer or other person to:

• contravene the ESA or regulations
• make or keep false records or other documents that must be kept under the ESA
• provide false or misleading information under the ESA
• fail to comply with an order, direction or other requirement under the ESA or regulations.

Offences may be prosecuted and, if there is a conviction, the offender may be subject to fines or imprisonment. The Ministry of Labour may choose to prosecute an employer or any other person who is in contravention of the ESA. Individuals, if convicted of an offence, can be fined up to $50,000, imprisoned for up to 12 months, or both.

A corporation can be fined up to $100,000 for a first conviction. If the corporation has already been convicted of an offence under the ESA, it can be fined up to $250,000 for a second conviction. For a third or subsequent conviction, the corporation can be fined up to $500,000.