The Ministry of Labour administers the ESA and its regulations by:
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, seven brochures, four of which are published in 23 languages; a variety of fact sheets covering topics such as domestic workers, agricultural workers, and young workers; and worksheets to help employees figure out how much they are owed. The ministry has also developed a number of online tools to assist employers and employees to understand the provisions of the Act, such as the Termination Tool, the Public Holiday Pay Calculator and the Severance Tool.
The ministry is also involved in outreach initiatives such as information seminars and workshops for employer groups, employment counsellors, and professional associations.
Employment standards officers conduct proactive inspections of payroll and other records, including a review of employment practices. An officer performing a proactive inspection will usually visit the employer's business location. 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 thinks may be relevant.
An officer is able to take away records or other information for review and copying. The employer is welcome to ask questions, and to request further information.
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 before a claim can be investigated. Issues can often be resolved quickly with this approach.
In some situations, an employee may not be required to contact his or her employer before filing a claim submission (e.g. If the employee is afraid to contact the employer or he or she is a young employee). Employees have an opportunity to tell the ministry on the Claim Form why they did not contact their employer, or that they have already contacted their employer. If the employee contacted the employer but the issue was not resolved, the employee does not have to contact his or her employer again.
If the parties are unable to resolve the issue on their own, and if the employee has provided all the required information on the Claim Form, the matter is assigned to an employment standards officer for investigation.
When a claim is assigned for investigation, the employment standards officer may conduct his or her investigation by telephone, through written correspondence, by visiting the employer's premises or by requiring the employee and/or the employer to attend a meeting. During an investigation, both parties have the opportunity to present the facts and arguments they believe are important to their case. If a claim has been submitted against the client of a temporary help agency regarding a possible reprisal, employment standards officers have the same powers of investigation with respect to the client as they do for an employer. The officer will make a decision based on the best available evidence which may include employer records, client records, employee records, and interviews.
An employee and employer can enter into a settlement to resolve their dispute. A settlement is an agreement made between an employee and his or her employer that will resolve the claim. The ESA allows this option in certain circumstances after a claim has been filed. If a settlement is made, the employee and his or her employer will have to inform the ministry in writing of the terms of the settlement. If the employee and employer do what they agreed to under the settlement, the claim is considered to be withdrawn and the investigation will come to an end. Claimants and employers are not required to resolve a claim by entering into a settlement.
There are strict timeframes that apply to requests for documents from employees, employers and clients of temporary help agencies. If the information is not provided in a timely manner, a decision may be made without consideration of those materials. Similarly, if both parties were required to attend a meeting but one did not show up, the employment standards officer may make a decision based solely on the evidence provided to the officer before the meeting and the evidence provided by the other party at the meeting.
After investigating a claim, the employment standards officer makes a decision about whether the employer has or has not followed the ESA. If the officer finds that the employer has complied with the ESA:
If the officer finds that the employer has not complied with the ESA:
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.
In the case of a reprisal by a client of a temporary help agency, an officer can issue an order to reinstate in the assignment and/or compensate an employee for any loss incurred as a result of the contravention.
Employers and clients of temporary help agencies 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 or for whom an order has been issued have the right to appeal an order to pay wages or an order for compensation/reinstatement issued against their employer or against a client of a temporary help agency.
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 costs of 10 per cent of the money order, 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.
Example of an Order for wages for more than one employee
Lisa was working as graphic artist at a new company with five employees. She worked for four months and then quit her job. Lisa had worked a lot of overtime in the four months she was employed but was not paid overtime pay. She had spoken to her employer about being paid overtime but was refused.
Shortly after quitting her job, Lisa filed a claim with the ministry for her overtime pay. Her file was assigned to an employment standards officer for investigation.
The officer determined that Lisa and the other four employees were entitled to overtime pay going back five months, to the date the company started operation. Specifically, the officer found that the employer owed the five employees $15,647.87 in overtime plus $625.91 vacation pay on the overtime, for a total of $16,273.78. No single employee was owed more than $10,000.00.
The employer refused to voluntarily pay the money the officer found owing. The officer issued and served an order to pay wages on the employer on behalf of Lisa and the other employees. The amount of the order was $16,273.78, plus a 10 per cent administrative fee of $1,627.38. Lisa and the other employees were notified in writing of the officer's findings.
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 contravening a provision and to take certain steps in order to comply with a provision. 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.
Example of Compliance Order in addition to an Order to Pay Wages
While investigating Lisa's claim for overtime pay, the employment standards officer discovered the employer was not giving the five employees proper meal breaks of at least 30 minutes after every five consecutive hours of work. Also, the employer had not posted the "What You Should Know About the Ontario Employment Standards Act" poster as required under the ESA.
In addition to the order to pay wages, the officer issued and served on the employer a compliance order directing it to: comply with the overtime provisions of the ESA; ensure that employees would receive their proper meal breaks; post the material required by the ESA; and post a copy of the compliance order in a conspicuous place at the workplace for six months.
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:
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.
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:
If an employer is found in contravention of any other provision of the ESA, the penalties prescribed are:
Example of when there are further violations
Six weeks after serving the compliance order on Lisa's former employer, the officer visited the employer and conducted a further audit. The officer found that the employer was now paying overtime to all employees and had posted a copy of the compliance order. However, the employer had not posted a copy of the ESA poster and had not ensured that its five employees received proper meal breaks.
As a result, the officer issued and served a notice of contravention on the employer. This set out the officer's belief that the employer had failed to make the required posting ($250.00 penalty) and had failed to give proper meal breaks to five employees (five times the $250.00 penalty = $1,250.00), for a total of $1,500.00 in penalties.
The officer also informed the employer that further violations could result in future notices of contravention being issued and/or prosecution by the Ministry.
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:
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 for any loss the employee may have incurred.
Reviews are conducted by the Ontario Labour Relations Board, an independent, quasi-judicial tribunal. If employees, employers or clients of temporary help agencies 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 within 30 days of service of the order or notice
To obtain an Application for Review form contact:
Ontario Labour Relations Board
505 University Avenue, 2nd Floor
Toronto, ON M5G 2P1
The Application for Review form must be submitted to:
Ontario Labour Relations Board
505 University Avenue, 2nd Floor
Toronto, ON M5G 2P1
An employee who files a claim can appeal an officer's refusal to issue an Order to Pay Wages, an Order to Pay Fees, 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 client of a temporary help agency, or advising that the officer has refused to issue an order has been served on the employee.
For employers and clients of temporary help agencies, 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 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); an Order to Pay Fees (the employer must pay the full amount of the order plus the administrative costs to the Director of Employment Standards in trust); 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)
In addition, employers and clients of temporary help agencies can apply for a review of an Order to Pay Compensation and/or Reinstate an employee. The employer or the client of a temporary help agency must pay the lesser of the amount owing under the order 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:
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.
The copy of the Application for Review Form and other documents:
In order of preference:
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. While the Director of Employment Standards may establish other criteria, generally speaking the Director will find a letter of credit to be acceptable if:
The payment should be forwarded to:
Address for mail, courier or hand delivery:
Director of Employment Standards
Employment Practices Branch
Ministry of Labour
400 University Avenue
Toronto, ON M7A 1T7
The ministry will issue a proof of payment to the employer or client of a temporary help agency, and will hold the payment in trust.
For more information on letters of credit, please refer to the Ministry of Labour website. There is a link to "Letter of Credit" information under the "Topics" menu.
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 employee, employer, or client of a temporary help agency 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.”
If an employer or client of a temporary help agency does not apply for a review within 30 days of the date the order or Notice of Contravention was served, the order or notice is final and binding. If the employer or client of a temporary help agency has not paid the required amount, the Director of Employment Standards forwards the order or notice to a private collection agency.
The Director may authorize the collection agency to collect a reasonable fee and/or costs from the employer or client of a temporary help agency. Once an order or notice is sent to a collection agency the employer or client of a temporary help agency must pay the collection agency fees and the Ministry's administrative costs.
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:
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.