THE EMPLOYERS' EDGE
Amendments to the Employment Standards Act via the Open for Business Act will be a refreshing change for Ontario Employers
Bill 68, the Open for Business Act, was passed October 25, 2010 and will come into force on a day to be named by royal proclamation. Schedule 9 of this Act amends multiple sections of Employment Standards Act (“ESA”) in an attempt to create a more efficient process for the resolution of Employment Standards claims. Through this legislation the government hopes to encourage the early resolution of disputes without sacrificing effectiveness. Specifically, the Ontario government appears to be reacting to a backlog of ESA claims currently estimated at 14,000.
The Director of Employment Standards and the Responsibility of Employees
The Director of Employment Standards (“Director”) will not assign an employee’s ESA complaint to an Employment Standards Officer (“ESO”) for investigation unless:
The employee alerts the employer that he or she believes there has been a violation of the ESA. In fact, if the complaint relates to unpaid wages the employee must specify that wages are owed along with the quantum owing.
The employee details in writing what information was given to the employer, how it was given and the response from the employer, if any.
The employee provides the Director with evidence or other information in writing that the Director has deemed appropriate for that particular investigation.
If the employee has not taken steps specified by the Director within six (6) months of filing a complaint an officer is deemed to have refused to issue an order. However, the Director has the discretion to assign a complaint to an ESO even if an employee has failed to complete the specified steps.
The Enhanced Role of the Employment Standards Officer (ESO)
The ESO’s functions have been expanded by allowing them to facilitate settlement and come to decisions where a party fails to make all relevant information available.
The ESO’s power to facilitate a settlement in a matter they have been assigned to investigate has been expressly set out in Schedule 9. When a settlement is reached by an ESO it will be binding on the parties, the complaint will be deemed to have been withdrawn, the investigation will be terminated and any proceeding respecting the contravention alleged, other than a prosecution, is terminated.
The power of an ESO to decide a complaint has also been purposely expanded. Ideally an ESO will come to a decision after all relevant information has been brought to their attention. Schedule 9, however, recognizes that parties may be uncooperative or information may be unavailable. As a result, an ESO is permitted to decide a claim where a person served with notice fails to attend a meeting or where a person served with notice fails to make available any records, evidence, submissions or other documents required by the notice.
Impact on Employers
Schedule 9 of the Open for Business Act ought to be a refreshing change for employers, as an ESA claim is far more likely to be brought to their attention before it escalates to the level of an investigation. This legislation will allow employers who may be previously unaware of their ESA responsibilities the opportunity to remedy their actions when a potential violation is brought to their attention by their employee. Further, the changes ought to allow ESO’s and the OLRB to focus on more contentious and complicated matters, with cases not characterized as such reaching settlement more frequently or at least being resolved more expeditiously.
Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.