Employment Standards Act - 2011 Update

PRESENTER: CHUCK TAHIRALI
Employment Standards Act
Recent amendments and Notable Developments

NEW ESA COMPLAINT PROCEDURES
As of January 19, 2011, employees must:
• Notify employer of violation and, if dispute relates to “wages”,
amount of wages at issue; and
• Advise the Ministry in writing of the notification, about what
information was provided to the Employer, how it was provided,
and the Employer’s response.

Employees may notify Employers:
• In-person, by regular mail, registered mail, courier, e-mail, fax or
by telephone.
If Employee fails to take these steps:
• Complaint will not be assigned to an Officer; and
• If steps not taken within 6 months of filing Complaint, an Officer
will be deemed to have refused to issue an Order.

NEW POWERS FOR ESA OFFICERS
• Officers have the power to attempt to settle Complaints. If
settled, Complaint deemed withdrawn.
• Officers have the power to give notice notice to the parties
requiring them to provide evidence or submissions within
specified time frame.
• Failure to attend meeting or provide information on time may
result in Officer deciding in absence of party or without requested
information.

• Ministry has discretion to assign a Complaint for investigation
even if steps not taken.
• For example, discretion may be exercised if:
o Workplace closed down or employer bankrupt;
o Employee is young or afraid to make contact or has a
language issue or disability making contact difficult.

EXEMPTION – REG. 288
NO entitlement to notice, termination pay or severance pay:
An employee who has been guilty of wilful misconduct,
disobedience or wilful neglect of duty that is not trivial and has not
been condoned by the employer.

Oosterbosch v. FAG Aerospace
• Court satisfied employer had demonstrated just cause for
termination of the plaintiff. In the Court’s view, the persistence of
the plaintiff’s misconduct despite on-going coaching sessions and
warnings constituted a repudiation of the employment
relationship.
• Plaintiff demonstrated a sustained course of casual and careless
conduct that was inconsistent with the continuation of his
employment, but the Court did not accept that his conduct
amounted to wilful misconduct/neglect of duty under the ESA.

NEED TO KNOW
• Wilful misconduct or wilful neglect of duty
under the Ontario Employment Standards Act
may be HIGHER standards to meet than “just
cause” under common law.
• It is possible to have “just cause” for dismissal and still owe
statutory entitlements to employee.
• What about “just cause” under a collective agreement?

What is Wilful Misconduct?
• Conduct that seriously interferes with either the performance of
the employee’s job duties or that of his or her co-workers.
• Normally the Employer would have to demonstrate that harm has
been done to its operation; and
• The misconduct amounts to a repudiation by the employee of the
employment contract.

Two (2) general categories of serious misconduct:
1) Single acts, such as insubordination, theft and dishonesty, and
physical violence against other employees, which may, on their
own, meet that standard of seriousness.
2) Less serious repetitive forms of misconduct, which if handled
properly by the employer, will also meet this standard of
seriousness.

• “Proper handling” by Employer means:
• Employer explained to the employee after each occurrence that
the conduct in question was not acceptable and that if continued
would result in termination; and
• Subsequent to these warnings, there must be a culminating
incident.

IN ADDITION:
• Employer must demonstrate that the conduct complained of is
wilful.
• Careless, thoughtless, heedless, or inadvertent conduct, no
matter how serious, does not meet the standard. Rather, the
employer must show that the misconduct was intentional or
deliberate.

EXEMPTION – REG. 285
NO entitlement to overtime pay:
A person whose work is supervisory or managerial in
character and who may perform non-supervisory or non-
managerial tasks on an irregular or exceptional basis

Glendale GC&C and Sanago
Ontario Labour Relations Board (OLRB) found:
• Duties clearly indicate fundamental character of the position is
managerial and/or supervisory: Could hire, fire, administered
large budget, could affect the working lives of others.
• Realities of short-staffed kitchen obliged Chef to perform line
cooking for 2 months.

OLRB found:
• Being managerial in character not enough.
• Pursuant to language of new exemption, must also determine
whether Chef performed non-supervisory or non-managerial
tasks, and if so, whether he performed these tasks on an irregular
or exceptional basis.

• Irregular implies that, although the performance of non-
supervisory or non-managerial duties is not unusual or
unexpected, their performance is unscheduled or sporadic.
• If a pattern forms or they are performed on a daily basis, the
frequency with which such duties are performed and the amount
of time spent performing them may be relevant.

• Exceptional suggests that non-supervisory or non-
managerial duties may be performed so long as they are
being performed outside of the ordinary course of the
employee’s duties, i.e., something “out of the ordinary”.
• Board found that duties not preformed “irregularly”, but they
were performed on an “exceptional” basis.

• Therefore, Executive Chef was an exempt position.
• However, Board found that he was still entitled to overtime pay
because of s.22(9) of the ESA.
• 55% of time spent line cooking; 45% of time managing.

SECTION 22(9) OF ESA
If an “exempt” employee:
• Performs non-exempt work (e.g., non-supervisory or non-
managerial tasks) in a particular work week, in addition to his/her
regular exempted duties;
• Then the employee is entitled to overtime pay for any overtime
hours worked that week unless the time spent by the employee
performing the exempt work was less than half the time worked
that week.

Employment Standards Act - 2011 Update

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Employment Standards Act - 2011 Update