Employer's Obligations: How Familiar Are You With Ontario’s Labour Laws?

Issue: 
July-August 2013

If that last question has you stumped, don’t feel bad. I didn’t clue in myself until quite a few years later. Perhaps my employer at the time was also unaware. Perhaps not. Either way, because I had been in the employ of this company for over three months, that lay-off notification should rightly have come one week earlier or been accompanied by an extra week’s pay. That is, at least, according to the Ontario labour laws I didn’t know enough about at the time.

Labour law is a highly bureaucratized, multi-pronged affair in Ontario with specific sets of laws and regulations for employment standards, worker’s compensation and, of course, the health and safety stuff we rightly hear so much about in our profession. Labour law can also be tediously complicated (partly because it’s frequently revised), and comes complete with its own special lawyers. 

As an employee, what’s important to remember is that you don’t have to necessarily be part of a union to be eligible to receive certain benefits. Many benefits, including vacation time, overtime, holiday pay and leave, are available to pretty much all employees of any size business courtesy of the Employment Standards Act (ESA). Also important to remember: the ESA exists for the benefit of employers too. No matter if you’re fresh out of school or a well-seasoned worker, an employee or an employer, in a union or non-union environment, labour standards are something everyone needs to be familiar with (and, of course, abide by). Personally, I think it’s one of those things you should have had to learn about in high school. Ditto for the rules governing rental accommodation. After all, that’s the age when most of us are getting our first jobs and bosses, and our first landlord is not too far off down the road.

Contracts
Actually, renting a home/apartment and starting a job have some things in common. At the most basic level, we’re talking about contracts and contract law, albeit contracts that create a rather special type of legally-binding relationship between two parties. Ontario’s respective laws surrounding these specialized contracts are the Residential Tenancies Act (formerly the Landlord-Tenant Act) and the ESA. Both describe and establish a set of fundamental rights and obligations for the parties involved. Some parts of both laws have built-in flexibility or are otherwise negotiable. Other parts are not – they are, simply, the law. For example, both Acts include clear, specific rules for how, and within what time frames, either party must notify the other of their wish to terminate the contract. Perhaps the most important thing to keep in mind, even with pre-written forms, is that any contract isn’t worth the paper its written on, and nothing is legally binding, until both parties have signed on.

Informed Consent
So you’re in the job market. You’re looking for a job, scouring online and newspaper postings. Those job ads you see posted advertising for a climber, ground crew, PHC tech, salesperson, etc. are the overture for a contract you ultimately hope to enter into with someone or some company. Even at this preliminary stage, there are standards that an employer must abide by. For example, much as they might want to do so, they can’t be advertising less than minimum wage. The advertised position must also have a clear job title and some kind of description of what the job entails.

Often, particularly with government jobs, the posting will refer to secondary documents like an SOQ (statement of qualifications) or a fairly detailed list of duties/responsibilities. Of course, every public sector work place is governed by a long wordy contract whose every detail has been painstakingly hammered out by a union-management negotiating team. Those details often include the “rules of engagement” when soliciting new staff. Knowing these rules can be handy when prepping for a job interview. Did you know, for example, that the interviewer(s) for a federal government job can only ask you interview questions that are directly connected to items in the posting and SOQ?

In the end, of course, it is only fair and only makes sense that you, the potential employee, know exactly what you’re getting yourself into and the employer is actually going to get the skill set, quality of work and productivity they’re paying for. Should your interview result in a job offer, the “rules of engagement” help to bring both parties into conformity with another essential aspect of contractual agreements: the principle of “informed consent.” Good contract language is wordy for a reason: things shouldn’t be vague or misleading, and certainly not intentionally missing. Any employer-employee contract can be legally deemed null and void if a court or labour board concludes that a reasonable threshold of informed consent among the parties has not been met.

Letter of Offer
If all goes well at the interview, you end up with a job offer. This offer should come to you in writing, ideally on company letterhead. You’re taking your chances if it’s only verbal (more on this later). I was unable to find anything in the ESA that requires certain specific content in a “letter of offer.” Yet it seems that there is certainly a generally accepted format out there. An internet search yields quite a few templates and sample letters. To illustrate, I’ve included a sample letter of offer and underlined the critical stuff that’s there. Download... 

Letters can certainly differ in their wording. However, they should include company letterhead and contact info, offer date, name and contact info for whom the offer is being made, position title, start date and length of employment, salary, work week, frequency of payment, how vacation pay will be dealt with, add a list of duties for the position being offered, and a space for you to sign and date your response. It’s okay to call the employer and verbally accept right away, but don’t actually start working for anyone before this critical paperwork has been completed. This letter (and any listed attachments), once signed and dated by both parties, is your contract.

As clear as my sample letter is about a number of things, it isn’t quite as comprehensive as it could be. For example, it would be even better if it mentioned where and what time to report for work, how overtime is to be dealt with, and the potential for further work beyond the sixth month. And what exactly does “seasonal” mean? You should also pay full attention to any add-on documents referred to in the letter. Beyond your day-to-day tasks, your “duties” may also include having and maintaining certain licences, certifications or professional memberships, having responsibility for others (i.e., supervision), providing your own gear, availability for work on weekends and/or holidays, etc. In the end, clarity is good for employer and employee alike. A thorough and clearly worded letter of offer builds the foundation for a potentially long and mutually beneficial relationship.

Filing A Claim
Source: CALC 2012. Should you find yourself on the receiving end of what you believe to be a standards violation, you have two legal courses of action to choose from: you can file a claim with the Ministry of Labour or you can commence your own court action against the employer. You can’t do both. Claim awards currently max out at $10,000. If you believe you’re owed more than that, court may be your better option. You must file your claim, or commence your court action, within six months of the alleged violation(s), so don’t think about it too long. If you go the claim route, the Ministry recommends the following:

1) You should contact your employer first about the issue. Do this in writing. The Labour Board will want to know that you made your own effort to solve the issue before engaging them.

2) Collect hard copies of any and all documentation related to your claim. (You have, of course, kept your copy of the letter of offer and its attachments, as well as your pay stubs.)

3) Complete a claim form. Forms are available on the Ministry website.

4) Submit your claim form and get a claim submission number. The Ministry recommends doing so online (because you’ll get the submission number right away), but you can also fax it, drop it off at a Service Ontario Centre, or mail it the old-fashioned way. Make sure your name is on every page of your claim submission, including any supporting documentation.

Despite your best efforts, the Labour Board may render a decision in favour of your employer. If you still feel strongly that you’ve been wronged, you will have an opportunity to appeal that decision. What you won’t be allowed to do afterwards is begin a court action for the same thing.

Final Thoughts
Ontario’s law states specifically that contracts agreed upon verbally are perfectly acceptable and equally binding. The fundamental problem, however, is that verbal agreements rely on goodwill, honesty and flawless memories. Almost no one has a flawless acoustic memory and, in a world where roughly 1 in 25 people (that’s well over a million Canadians!) is sociopathic, goodwill and honesty are hardly guaranteed, especially when both money and self-interest are at play. So the age-old axiom of contracts definitely continues to apply: get it in writing. And make sure to follow up on any verbal agreements in writing as well. In the event of a claim, a solid paper trail will be the only reliable leg you’ll have to stand on.

Retrospective
Over the course of my career to date, my jobs have included positions with five private tree care companies in Ontario. Two of those ended with me filing Labour Board claims, both for unpaid wages. A third one – the one I mentioned at the beginning of this article – would also have prompted a claim had I been better informed at the time. That’s three out of five companies! Maybe I’ve just had bad luck, or maybe there are just plenty of ethically-challenged tree care companies out there. Besides screwing me around, all three had something else in common: their owners really didn’t give a damn about trees except for how much money they were making off them. Trees were nothing but a commodity from which to gain maximum profit. Watch yourself! Such shallow-minded operators tend also to treat their employees as nothing more than commodities. They’ll also happily lie and cheat, encourage cash payment for services (“or I’ll have to charge you hst”), or may well ask you to lie for them. These operators are toxic to you, the trees, our entire industry, and society at large. Maybe those of us seeking to be employees should be asking for references too.  

2-Page pdf "Ontario Employment Standards" 101...

References & Links
Government of Ontario, 2012. “Employment Standards Act, 2000”:
www.e-laws.gov.on.ca/html/statutes/english/elawa_statutes_00e41_e.htm

MOL (Ontario Ministry of Labour). “Employment Standards Guidebook”:
www.labour.gov.on.ca/english/es/pdf/es_guide.pdf

-----, 2010. “Complying with Employment Standards: What Businesses Need to Know”.

-----, 2008. “What You Should Know About The Ontario Employment Standards Act”.

CALC (Community Advocacy and Legal Centre), 2012. “Making an Employment Standards Claim - What Do I Do?”.

Gowlings, “Back to Basics - Employment Contracts”: 
www.gowlings.com/knowledgeCentre/publicationPDFs/Back-to-Basics-Employment-Contracts-101.pdf

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