Orders to Compensate and / or Reinstate

• ISBN: 978-1-4435-3927-2
• Issued: July 2010
• Content last reviewed: August 2010
• PDF Version [ 138 KB / 3 pages | Download Adobe Reader ]

If an employer has contravened the Parts of the Employment Standards Act, 2000 ("ESA, 2000") providing for leaves of absence, prohibiting the use of lie detectors, giving certain retail employees the right to refuse Sunday work, or protecting against reprisal, the employment standards officer has the power to order an employer to:

• Reinstate an employee to his or her former position; and/or,
• Compensate an employee for any loss that the employee suffered because of the violation. There is no maximum amount for an order for compensation.

Also, if the officer finds that wages are owed to an employee, he or she may issue an order to pay wages against the employer (to a maximum of $10,000). The officer can do this whether or not there was a violation of the Parts of the Act referred to above.

Types of Wages and Compensation

An employment standards officer can order an employer to pay an employee the following types of "wages" and "compensation". Here are examples of "wages" and "compensation":

1. Actual unpaid wages (including vacation pay on the amount of unpaid wages)

These are wages that were actually earned by the employee, but not paid.

Example: An employee started his or her ESA, 2000, leave just before a public holiday. The employee qualified for public holiday pay, but was not paid. The employment standards officer can order the employer to pay the employee the public holiday pay that the employee actually earned including vacation pay on the public holiday pay).

2. Compensation for direct earnings loss (including vacation pay on such earnings)

This is what the employee would have earned, but did not earn because of the violation.

Example: An employee's employment is unlawfully terminated before he or she starts his or her ESA, 2000 leave. The employment standards officer can order the employer to pay the employee the wages (plus vacation pay) that he or she would have earned between the termination date and the date that the leave should have begun.

3. Pre-reinstatement compensation (i.e., compensation for losses incurred prior to reinstatement)

This may be payable if the employer fails to reinstate the employee at the end of his or her leave, and the employment standards officer issues a reinstatement order or the employer belatedly reinstates voluntarily. This is the lost "earnings" (including vacation pay calculated on those earnings) from the date that the employee should have been reinstated to the date that the employee was reinstated.

Example: The employee should have been reinstated on June 1, but the employee was reinstated on November 1. The "pre-reinstatement compensation" would be the earnings that the employee would have earned from June 1 to November 1.

4. Time required to find a new job (compensation) or Termination pay (wages), including vacation pay

This may be payable when the employer terminates an employee's employment, and the employment standards officer does not issue an order for reinstatement and the employer does not reinstate voluntarily.

Example: An employee was not reinstated in his or her job after taking an ESA, 2000, leave. Instead of ordering the employer to reinstate the employee, the employment standards officer can order the employer to pay compensation based on the greater of (a) the time the officer determines it would likely take the employee to find a new job, and (b) the employee's termination pay entitlement under the Act.

5. Severance pay (wages)

This may be payable when:

• The employer severed the employee's employment;
• The employment standards officer does not issue an order for reinstatement; and
• The employer does not reinstate voluntarily.

6. Compensation for expenses that the employee incurred in seeking new employment

This may be payable if the employer terminated the employee's employment and the employment standards officers does not issue an order for reinstatement, and the employer does not reinstate voluntarily, or if the employee was reinstated, but the employee looked for a job before the employment standards officer issued the order for before the employer reinstated voluntarily.

Example: The employment standards officer can order the employer to compensate the employee for expenses he or she incurred for items such as:

• Travelling expenses to and from interviews;
• Costs for preparing, photocopying and mailing resumes;
• Child care costs that are directly related to the job search (and that would not have been incurred had there not been a contravention); and,
• Any other reasonable expenses.

7. Compensation for loss of reasonable expectation of continued employment

This is to compensate the employee for fact that he or she was unlawfully deprived of a job to which he or she was entitled.

This may be payable if the employer terminated the employee's employment, and the employment standards officer does not issue an order of reinstatement and the employer does not reinstate voluntarily.

8. Compensation for emotional pain and suffering

This may be payable if an employee experienced emotional pain and suffering because of the employer's contravention.

This compensates the employee for his or her pain and suffering.

9. Compensation for benefit plan entitlements

This is where the employer's contravention of the Act resulted in the employee losing benefit plan coverage.

The employment standards officer can order compensation for:

• Costs that the employee had because the benefit plan coverage stopped (For example, the cost of dental work and prescription drugs).
• Replacement cost for coverage.

10. Compensation for other reasonably foreseeable damages

Generally, the types of damages listed above will cover the kinds of losses the employee suffered because of the contravention. However, any reasonably foreseeable damages may be made the subject of a compensation order.