Employment standards legislation is tough to read even for lawyers. There are exceptions, stale language and cross-references galore. For a law apparently designed to assist those likely without post-secondary educations, or with educations but not yet with the "big job", the statute is very difficult to comprehend, even with a rack of brochures to help out.

In this article, we try to sort out the "greatest hits" only and warn the reader that there are exceptions to almost everything in employment standards and as if that were not enough, the legislation changes frequently as it is often the target of political re-expression. The version used in this article is known to be accurate as of October 2008. For more information, please call the Employment Standards Information Centre of Ontario (check the blue pages in the phone book).

There are other Ontario laws which may be relevant such as the Human Rights Code,  the Occupational Health and Safety Act, the Workplace Safety and Insurance Act, 1997, the Labour Relations Act, 1995, and the Pay Equity Act.

farm workersLike sister employment standards legislation across Canada, Ontario's Employment Standards Act sets out minimal rights and entitlements of employees. This statutes states it’s purpose - to benefit employees - except that the statement is hidden within the definition of employment standard:

"...a requirement or prohibition under this Act that applies to an employer for the benefit of an employee."

The formidable scope of the Act is set out at s. 5 and 8 which are self-explanatory:

"... no employer or agent of an employer and no employee or agent of an employee shall contract out of or waive an employment standard and any such contracting out or waiver is void.

"If one or more provisions in an employment contract or in another Act that directly relate to the same subject matter as an employment standard provide a greater benefit to an employee than the employment standard, the provision or provisions in the contract or Act apply and the employment standard does not apply.

"Subject to §97, no civil remedy of an employee against his or her employer is affected by this Act.

"97(2) An employee who files a complaint under this Act alleging an entitlement to termination pay or severance pay may not commence a civil proceeding for wrongful dismissal if the complaint and the proceeding would relate to the same termination or severance of employment."

Not all working individuals qualify as "employees" under the Act.

The statute defines "employee" as:

"... a person, including an officer of a corporation, who performs work for an employer for wages, a person who supplies services to an employer for wages, a person who receives training from a person who is an employer, ...or a person who is a homeworker."

Wide categories are excluded such as:

  • Employees and employers in sectors that fall under federal jurisdiction, such as airlines, banks, the federal civil service, post offices, radio and television stations and inter-provincial railways;
  • Individuals performing work under a program approved by a college of applied arts and technology or university;
  • A secondary school student who performs work under a work experience program authorized by the school board that operates the school in which the student is enrolled

Employers - and sometimes even prospective employees – can be quite creative in trying to escape application of the Act, especially by trying to get an employee qualified as an independent contractor. Waiting, though, to ambush many crafty employers are the courts who seem intent in extending the benefit of the Act if at all possible.

In Head v Inter Tan Canada Ltd., one of the arguments the plaintiff made at trial was that he was an employee pursuant to the Employment Standards Act; and not just an independent contractor. Justice Farley of the Ontario Court of Justice noted that Head had been manager of a Radio Shack store and:

"... was subject to the store operating manual, which is a document that has an 11-page index covering topics as diverse as address change of personnel, advertising, attendance records, banking, customer rating codes, death in family, gift certificates, hours open, insurance, jury duty, keys to store, maintenance of premises, overtime, purchase orders, repairs, sales tickets, telephone bills, etc....

"Weighing all the elements of the work situation, I would conclude that Head was not acting as an independent businessman but, rather, as an employee within the purview of the Employment Standards Act."

Ontario’s Employment Standards Act requires employers to pay at least minimum wage ($7.75 as of October 2008 and $10.25 since 2010) and by cash, cheque or direct deposit and provide to the employee a pay statement, although some exceptions are made in regards to specified trades (eg. clothing industry), student employees or those who also have room or board.

Hours of work must not exceed 48 hours per week and, although there are exceptions, eight hours a day or, with the employee’s consent, up to 60 hours a week.

And even then, there are even more exceptions such as set out at §19:

"An employer may require an employee to work more than the maximum number of hours permitted ... or to work during a period that is required to be free from performing work ... only as follows, but only so far as is necessary to avoid serious interference with the ordinary working of the employer’s establishment or operations: to deal with an emergency;  if something unforeseen occurs, to ensure the continued delivery of essential public services, regardless of who delivers those services;  if something unforeseen occurs, to ensure that continuous processes or seasonal operations are not interrupted; or to carry out urgent repair work to the employer’s plant or equipment."

Any hour of work over 44 in one week is considered to be overtime and must be paid at 1.5 times the regular rate of pay.

For work done on public holidays:

"An employee’s public holiday pay ... shall be equal to the total amount of regular wages earned and vacation pay payable to the employee in the four work weeks before the work week in which the public holiday occurred, divided by 20; or if some other manner of calculation is prescribed, the amount determined using that manner of calculation."

Vacation pay is at least two weeks per 12 months worked.

In regards to meal breaks, §20 and §21 apply. Employers must grant meal breaks of at least 30 minutes after five hours of work. But the employee can agree to two meal break periods of a total of at least thirty minutes for each five-hour period.

The Ontario legislation accommodates pregnancies and adoptions (leave of absence without pay) and grants ten days of emergency leave if it is related to specified relatives of the employee as follows:

"An employee whose employer regularly employs 50 or more employees is entitled to a leave of absence without pay because of ... a personal illness, injury or medical emergency...."

On termination without cause, the employee is entitled to notice or severance pay in lieu of notice as set out at §57; generally, one week for every year of employment, up to a maximum of eight weeks.

The  Act also throws in a bureaucracy (through the Ontario Ministry of Labour) designed to help the employee against the big bad wolf. By filing a complaint, the employee ignites a fire under an employment standards officer who investigates, makes determinations and can administer the matter right through to an enforceable decision.

REFERENCES: