ESA has answers to help avoid workplace disputes

By Tony Poland, LegalMatters Staff • A basic understanding of the Employment Standards Act (ESA) could help workers and employers avoid undue grief, says Toronto employment lawyer Jeffrey M. Andrew.

Andrew, a partner with Cavalluzzo LLP, points to the recent case of a woman who received a $16,000 settlement from her former employer after she complained she was paid below minimum wage for six months.

He says consulting the ESA may have saved the woman and her employer some unnecessary distress.

“The biggest question that is asked is, ‘How did this happen?’” Andrew tells LegalMattersCanada.ca. “Often, the answer is because people do not know their rights or the employer does not know their obligations. It is not always a case of deliberate malfeasance but I am sure it does happen in some cases.”

‘Many people don’t know the Act exists’

“I do not believe this is an unusual case at all. We have laws under the Employment Standards Act to protect workers. But the truth is, many people don’t know the Act exists,” he adds. “There are employers who know about the ESA but don’t really familiarize themselves with the details of it. And it is actually a lot more complicated than it used to be. For that reason, some people are not getting paid minimum wage.”

CTV News reports a woman filed an Employment Standards Claim with the Ontario Ministry of Labour alleging she was owed more than $18,000 in wages from her former employer.

The woman came from Canada from India as a student in 2018 and wanted to remain in Canada, according to CTV. A restaurant offered her a job with the promise to provide a letter to help secure permanent residency. 

The woman told CTV she took the job, which initially paid $60 a day, far below the minimum wage, and worked as a server, cook, cleaner and cashier for seven months between June and December 2020.

Woman denied minimum wage

She says during her employment she asked to be paid minimum wage, but was denied, CTV reports. After quitting the job, she sought help from an agency that assists international students and workers and last month the ministry ordered she be paid $16,495.

“It appears she was made certain promises about obtaining landed immigrant status, which is problematic in itself,” says Andrew, who was not involved with the case and comments generally. “It could be that someone eventually told her that her work situation wasn’t quite right. She received help from a clinic but many people are not necessarily lucky enough to get advice about how to deal with an unfair employment relationship.”

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He says in most cases, employees must be paid a minimum wage under the ESA but there are exceptions to the rule. It is not uncommon for the regulations to be misinterpreted, says Andrew. 

“The reality is that employers will sometimes be ill-informed,” he says. “They may have heard someone else’s interpretation of the Act and they make the wrong assumption. 

“It is amazing the kinds of things people will believe to convince themselves that they are doing something that is acceptable,” Andrew adds. “And certainly, there are instances where people deliberately exploit others.”

A worker is entitled to take overtime in pay

For example, he says there are laws regulating how overtime should be paid. Andrew says he has seen employers who pay overtime as time in lieu. However, the worker is entitled to take the overtime in pay, unless there is an agreement with the employer for lieu time taken instead within certain periods specified in the statute. 

People are often so happy to get a job that they don’t always pay attention to what they are getting into, he says.

“When you’re getting hired, you may be asked to sign an employment agreement,” says Andrew. “From my experience, people rarely get legal advice before signing these contracts. As a lawyer, I see many examples of employment agreements that are just unlawful.”

He says workers can benefit from going through the ESA to see how it applies to their situation.

“People should always look at the Employment Standards Act, either before taking a new offer or while on the job to understand what their rights are. When it comes to employment issues, what we have today that we didn’t have decades ago is the internet. It is an excellent place to get an outline of what your entitlements are,” says Andrew. “To its credit, the Ministry of Labour has a fairly comprehensive guide online.” 

He says getting advice from your company’s human resources department can also be helpful “but even they get things wrong.”

Can be a mistake to assume the information you receive is correct

Assuming the information you receive is correct, even if you work for a well-established business, could be a mistake, says Andrew.

“There have been successful class-action proceedings against very large organizations for issues such as minimum wage and overtime violations,” he says.

Andrew says while details about the ESA are readily available “some of the rules are pretty complicated.”

“The average person reading the Employment Standards Act would likely end up scratching their heads,” he says. “But If you have an issue that is of concern to you, it is in your best interest to consult the ESA. If you still don’t understand, you should seek legal advice.”

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