Over the last few months, a number of our clients have had to respond to complaints filed by former employees under the Employment Standards Act (“ESA”).

As of January 19, 2011 the complaint process under the ESA changed. Now an employee must generally let their employer know about an ESA complaint before a claim will be formally accepted.

In the past, the employment standards officer assigned to a case would generally schedule a “fact finding” meeting. In practice, this meeting was an informal mediation session. Now, although a fact finding meeting can still be scheduled more and more officers are making decisions without scheduling such a meeting. The fact there is a backlog of about 14 000 complaints may account for this change.

Here are three suggestions to keep in mind concerning the new ESA complaint process:

1. Settle Complaints early. If you receive an email or letter from a former employee asking for monies owed under the ESA then carefully consider the request. Do not ignore it. For various reasons, it is much better to settle an ESA complaint before the Ministry of Labour starts investigating the complaint.
2. Provide Requested Information immediately. If you receive a letter from the MOL asking you to provide information by a certain date then make sure you provide a response by the deadline;  otherwise, the officer can issue an order against your organization. The officer can also expand the investigation to include other employees
   within your organization.
3. Avoid Paying Additional Costs. Provide a comprehensive response to the MOL including all supporting documentation. If not, the officer can issue an order against your organization. Then you must pay this amount plus a 10% administrative fee before you can appeal the decision to the Ontario Labour Relations Board. If your appeal this decision to the OLRB and your appeal is successful, then your organization will generally not recoup its legal fees. These fees can be more than the amount of the order itself.

Employment Standard Act complaints can be resolved quickly in a cost effective manner if the employer carefully considers the merits of the complaint when the complaint is first received.

If you have any questions about the complaint process under the Employment Standards Act, please email us at [email protected] or call us at 416 977-9894.