ESA Exemptions and/or Special Rules" />
This guide is provided for your information and convenience only. It is not a legal document. For complete information, refer to the Employment Standards Act, 2000 and its regulations.
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 can phone the Employment Standards Information Centre for assistance in identifying and defining issues under the ESA and the EPFNA, and finding ways to resolve them at:
Please note, the Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others), 2009 ("EPFNA") is a different law from the Employment Standards Act, 2000.
If you are concerned about an Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others), 2009 violation, you must file an EPFNA claim using the correct claim form. You can access an EPFNA claim form on the MOL's website.
There are two situations in which an employee who is covered by the ESA cannot file a claim with the Ministry of Labour:
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.
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).
Employees can get a copy of the Employment Standards Claim Form:
In general, employees must try to contact their employer or former employer (or the client of a temporary help agency, if applicable) about the employment standards right(s) they believe have been violated and the amount of money they are owed.
This step may not apply to everyone. For more information on reasons why employees may not need to contact their employers, please see "Reasons Employees May Not Have to Contact Their Employer" later in this chapter.
Employees are encouraged to collect important documents about their work histories before completing the claim form. Having these documents close at hand helps claimants fill out the Claim Form.
Employees must fill out the required information on the Claim Form. In completing the Claim Form, the employee must give details about:
In addition, the employee will be asked to give information about the employer, such as:
It is recommended that an employee file his or her claim submission online. He or she will receive a claim submission number immediately.
Employees may also file a claim:
In person at select ServiceOntario Centre (1-800-267-8097).
By mail to:
Provincial Claims Centre
Ministry of Labour
70 Foster Drive, Suite 410
Roberta Bondar Place
Sault Ste. Marie, ON
By fax: 1-888-252-4684.
Note: If an employee files a claim submission by fax, in person, or by mail, he or she will receive a letter in the mail with the claim number once all of the required information has been provided. If the claim submission is missing required information, the employee will receive a letter in the mail with the claim submission number and a request to provide the information.
A claim submission number is assigned as soon as the ministry receives and registers your Claim Form. You will be provided with a claim number and your claim will be assigned for investigation once the ministry has verified that all required information has been completed.
A claim should only be filed once. For example, if an employee filed his or her claim online, the employee should not send another copy of the Claim Form to the Ministry of Labour.
In general, employees are required to try to contact their employer about their employment standards issue before their claim will be assigned for investigation. The following are examples of situations where employees may not be required to contact their employers:
If none of the reasons listed above describe the employee's situation and he or she still feels that there is a good reason not to contact the employer about the issue, the employee will have an opportunity to provide an explanation on the Claim Form.
For more information, please contact the Employment Standards Information Centre at 416-326-7160 or 1-800-531-5551.
Once a claim submission has been filed, it is reviewed to ensure that all the required information has been provided. If the Claim Form includes all required information, the claim is assigned to an employment standards officer for investigation. If the claim submission is missing required information, the employee will be contacted by the ministry and asked to provide the information within a specified period of time. The claim submission will not be assigned for investigation unless the required information is provided within that time.
During the investigation of a claim, the employee will be asked to provide some or all of the following:
The documents must be provided in the time period set out by the employment standards officer.
Please refer to the chapter entitled "Role of the Ministry of Labour" for information on topics such as:
With some exceptions, $10,000 is the maximum amount of wages the Ministry of Labour can order an employer to pay an employee. 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).
With two exceptions, the Ministry of Labour can only enforce the recovery of wages that were due within six months of the date the claim was filed:
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.
Example: 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. An employment standards officer will investigate Nhan's claim. However, the officer will not be able to issue an order to the employer to recover Nhan's wages because those wages became due more than six months before the date he filed his claim.
Example: When there are repeated violations
Jenny was employed in a restaurant for just over one year and was never 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, December 26 (Boxing Day) and New Year’s Day.
The employer repeatedly violated the public holiday sections of the ESA by not paying Jenny public holiday pay. Because at least one violation of the public holiday provisions occurred within six months of the date Jenny filed her claim, 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, an employment standards officer can issue an order to pay against Jenny’s employer for public holiday pay not only for Labour Day, Thanksgiving Day, Christmas Day, December 26 (Boxing Day) and New Year’s Day, but also for Canada Day, Victoria Day, Good Friday and Family Day.
Under the ESA, generally employees must file a claim within two years of the contravention in order for the claim to be investigated by an employment standards officer.
The above-mentioned six-month/12 months limitations on recovery apply only to an employee's ability to seek recovery of unpaid wages, including vacation pay, termination pay and severance pay. In the case of other violations, an employment standards officer is able to issue certain orders for up to two years after a violation has occurred. This two-year time limit applies where:
Despite the limitations on recovery of wages and filing a claim, it may be possible to make a claim that would otherwise be outside the applicable time limit if:
An employer tells John-Duncan, who is not at all familiar with the ESA, that no overtime is payable under the ESA to an employee in his circumstances, even though the employer knew or could have taken steps to find out that overtime pay in fact was payable in those circumstances. Because John-Duncan believes the employer, he does not file a claim for overtime pay. Later, after the time for filing a claim has passed, John-Duncan finds out from his friends that overtime pay was payable in his circumstances. In such a case, an employment standards officer might rule that the time limit that would otherwise not allow John-Duncan’s claim should be extended because the delay in filing the claim was caused by the untruthful statement of the employer about his ESA entitlements and because that was the cause of his not having filed her claim within the normal time limit.
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