The Open for Business Act, 2010 amendments should result in a more efficient complaints process that will ultimately save both time and money for employers when defending ESA claims filed by employees. Employers will receive direct notification about the complaint from the employee before the complaint is filed allowing for the possibility of an early settlement, and additional time for the employer to conduct a internal investigation and thorough response. With additional powers granted to Officers, there is also an opportunity to have an Officer-assisted settlement and to avoid any further costs associated with the complaint process.
On January 19, 2011, Bill 68 the Open for Business Act, 2010 came into force. Schedule 9 of this Act amends certain sections of the Employment Standards Act, 2000 to grant additional powers to the Director of Employment Standards (“Director”) and Employment Standards Officers (“Officers”) to facilitate timely resolution of complaints both before and after they are assigned to an Officer for investigation. According to the Ontario government, the purpose of the amendments is to improve efficiency of the employment standards complaints process, and to help reduce the significant backlog of complaints currently on file with the Ministry of Labour (estimated at over 14,000).
The three key amendments are as follows:
Specific steps must be satisfied before a complaint will be assigned to an Officer
Prior to the amendments, complaints were immediately assigned to an Officer for investigation and, ultimately, for determination of whether the employer violated the terms of the ESA. Now, before a complaint will be assigned to an Employment Standards Officer, the following steps must be satisfied:
- The employee must inform the employer of why they believe their rights under the ESA have been violated. Employees who file claims for unpaid wages must specify the amount they believe is owed to them;
- The employee must inform the Director of what information was provided to the employer, how it was provided and what, if any, response was received from the employer; and
- The employee must provide to the Director any evidence or other information that the Director deems necessary.
- The employee is required to take these steps within six months of filing the complaint and, if the steps are not taken, the Officer is deemed to have refused to issue an order. However, the Director does have the discretion to assign a complaint to an Officer for investigation even where the employee has not fulfilled these obligations
Officers may attempt to settle complaints
Under the amendments, the Officer may now assist the parties in attempting to reach a settlement. If a settlement is reached and the parties fulfill their respective obligations then the complaint is deemed to have been withdrawn. Once a complaint is withdrawn, the Officers investigation is terminated as well as any other proceeding respecting the complaint other than a prosecution.
Officers may decide a claim where a party fails to attend a decision-making meeting or fails to provide records or other documents as required
Under the new amendments, an Officer may now require the parties to provide evidence or submissions within a specified timeline set out in the notice. If a party fails to attend the meetings or fails to provide the specified documents within the required timeline, the Officer may rule on the complaint in the absence of the party and/or the submissions or evidence requested.
It is always the best course to avoid unnecessary ESA complaints whenever possible. Taking the time to prepare contracts and policies that are in compliance with the ESA and consistently applied within the workplace can reduce an employer’s exposure to successful complaints. Also, employers should investigate and carefully respond, in writing, when employees raise concerns that could give rise to an ESA complaint. This written response could be favourable for the employer if it is included in the information reviewed by the Director prior to assigning a complaint to an Officer.
This blog is provided as information and a summary of workplace legal issues.
This information is not intended as legal advice.