Employment Standards Act
The Employment Standards Act is the law that contains Ontario's basic
rules about working and employing people. Both workers and employers
have rights and responsibilities under the Act. These are some of the
rules that couriers should know.
The ESA does not apply if your courier company does a significant
amount of work that is inter-provincial or international. In that case
you are covered under the federal Canada Labour Code which
has similar standards to the ESA. For more information see the Human
Resources and Skills Development (HRSD) Labour
Standards information page:
One caution - the Ministry of
Labour must first make a determination as to whether you should be
classified as an employee (vs independent contractor) before you
qualify for coverage under the Employment Standards Act.
After working for an employer for 12
months, an employee is entitled to a minimum of two weeks vacation with
pay each year.
An employee, who works for an employer
for less than 12 months and quits or is terminated, is entitled to
at least 4% of the total wages as vacation pay.
An employer must deduct such things as
income tax, Canada Pension Plan and Employment Insurance from an
wages. Other deductions can be made only if the employee agrees to the
deduction in writing. This agreement is called an "authorization". But
there are limits to the deductions an employer can make.
Any authorization must state the amount
that can be deducted. If it says "any money missing" or "any money I
to my employer", it is not legal.
Even with a signed authorization, the
can't make deductions from an employee's pay if:
- there is any faulty workmanship. For
example, if the employee makes a mistake that causes something to break
[like a radio], the cost of fixing this can't be deducted from wages.
- there is cash or property missing if
more than one person has access to it.
Minimum wage is the lowest
hourly wage rate an employer can pay employees. Full-time and part-time
employees are entitled to minimum wage. Minimum wage applies regardless
of how you are paid - such as piece-work or commission.
The general, hourly rate of minimum wage effective February 1, 2005 is
$7.45 per hour. It will rise to $7.75 per hour on February 1, 2006 and
$8.00 per hour on February 1, 2007.
Employees must be paid for all hours worked. Any changes to the minimum
wage will be advertised.
Normal working limits for most employees
in Ontario are 8 hours a day and 48 hours a week. An employee may not
more than 8 hours a day and 48 hours a week.
An employer and an
employee can agree in writing that the employee will work more
but prior to making the agreement, the employer must give the
employee the Information
Sheet for Employees About Hours of Work and Overtime Pay prepared
by the Director of Employment Standards that describes the hours of
work and overtime rules in the ESA, and the employee has acknowledged
in the agreement receipt of the Information Sheet.
Meals Breaks: An employee cannot work more than 5 hours in a row
without getting a 30-minute eating period free from work. If the
employee and employer agree, the 30-minute eating period can be taken
as two shorter breaks within a period of five hours. Together the two
eating periods must total at least 30 minutes. Agreements to divide the
30-minute meal break into two shorter breaks do not have to be in
Under the law overtime pay
is one-and-one-half times the regular wage. Sometimes this is called
"time and a half". For example if the regular wage is $8.00 an hour,
then overtime pay would be:
$8.00+$4.00 (1/2 of $8.00) = $12.00
Overtime pay starts for most employees after they have worked 44 hours
in a work week unless the employer an employee agree to starting it
before 44 hours.
However, for drivers and drivers'
helpers on a 'for hire' delivery vehicle for local cartage, overtime
pay is 1½ × regular rate for each hour in excess of 50 in
a work week. This means couriers’ overtime starts after 50 hours in a
How to Calculate Overtime for
If you are paid for the amount of work
you do, and not for the number of hours you work, you calculate your
overtime this way.
Take the total amount you earned over a pay period and divide it by the
number of hours you worked in that same period. For example:
Your piece-work pay over one workweek was $580.00. During this week,
you worked a total of 58 hours. $580.00 divided by 58 is $10.00 an hour.
You have worked eight (8) hours of overtime in this week (58 - 50 = 8).
You are entitled to eight (8) hours overtime pay at one and a half
(1½) times your regular pay of $10.00 an hour. Your overtime pay
is $15.00 an hour.
You earned $10.00 an hour pay for these hours already. So you are
entitled to an extra $5.00 an hour for the four (8) hours of overtime,
or $40.00 extra.
Time Off in lieu of Overtime Pay:
If the employee and employer agree in writing, an employee can "bank"
time or take "time off in lieu" of overtime pay. If an employee has
agreed to bank overtime hours, he or she must be given 1½ hours
of paid time off work for each hour of overtime worked. Paid time off
must be taken within three months of the week in which it was earned
or, if the employee agrees in writing, within 12 months.
If an employee's job ends before he or she has taken the paid time off,
the employee must receive overtime pay, no later than seven days after
the date the employment ended, or on what would have been the
employee's next pay day, whichever is later.
Under the law, Ontario has eight paid
Most Ontario municipalities
(including Toronto) also recognize the first Monday in August as Civic
Holiday (paid public holiday)
|New Year's Day
||December 26 (Boxing Day)
Note: If your company falls under the
federal jurisdiction Remembrance Day (November 11) is also a paid
Most employees who qualify for paid public holidays don't have to work
on these days, but are still paid their regular wages for the day.
To qualify for a paid public holiday, a full-time or part-time worker
- been employed for
three months or more, and
- earned wages on at
least 12 days during the four workweeks before the
- worked on your
regularly scheduled day before and on your regularly
scheduled day after the holiday.
- not been employed
under an elect-to-work arrangement and
- a reasonable excuse
if they agreed to work
and failed to show up.
Important: Elect to work employees may
choose to work when requested and may refuse work without penalty. They
are not entitled to payment for public holidays.
All these rules must apply to the employee at the same time. If any
rule does not apply, then the employee does not qualify for a public
Most employees who agree to work on a public holiday must be paid time
and one-half for working on the holiday. This is in addition to a
regular day's pay if the employee qualifies for the paid public holiday.
Termination of employment
is when an employee stops working permanently for an employer. There
are other words that mean the same as termination: “being let go”,
“discharged”, “dismissed” or “fired”.
An employer can terminate an employee’s employment at any time, but
must give written notice of termination, or termination pay instead of
“Termination pay” is pay instead of written notice of termination when
employment ends. This is sometimes called “pay-in-lieu of notice” or
“lieu pay”. It is about one week of pay for every year worked to a
maximum of eight weeks.
Not everyone is entitled to get written notice or termination pay. For
example, an employee who has been employed for less than three months
is not entitled to notice or termination pay. There are other
situations where notice of termination is not required. For more
information contact the Ministry of Labour office. ( at 416-326-7160 or
(A temporary layoff is usually for 13 weeks or less in any period of 20
consecutive weeks or 35 weeks in any period of 52 consecutive weeks and
is not the same as termination. Notice is not required for a temporary
Employees must receive a written wage
each pay day. This must give full details about hours worked, earnings
and all deductions. This is usually called a “pay stub”. The employee
be given this record to keep.
Employers must record the hours worked
daily and weekly by the employee. Other records that must be kept
details of wages and overtime, vacation and public holiday pay and all
deductions from an employee’s earnings.
to File a Claim
A claim is a statement of
how your employer broke the rules in the Employment Standards Act
(reprinted from the
of Labour fact sheet)
Forms are available online at:
The Ministry of Labour (MOL) suggests that you begin by talking to your
employer or to your union representative if you have one. Or you
may want to send a registered letter to your employer explaining what
the problem is and how it might be solved. Keep a copy of the letter
and the mailing receipt.
If you cannot solve the problem yourself, contact the Employment
Standards Program at the nearest Ministry of Labour office, and discuss
your situation with an Employment Standards officer.
can't be punished for claiming their rights
Employers cannot intimidate, fire, suspend, or otherwise punish an
employee, or threaten any of these actions because the employee asks
for or asks about their ESA rights. If this happens, contact the
Ministry of Labour.
If an employee thinks that an employer is not following the ESA law, he
or she can contact the Ministry of Labour for help. Employment
Standards Officers can inspect workplaces and look into possible
violations of the ESA.
- Employers can be ordered to:
- pay the wages that are owing to
- give back an employee's job
- follow the rules of the ESA
- compensate an employee
The Ministry of Labour can also charge an employer with an offence,
including a ticket. If convicted, employers may be fined or sent to
May I file a claim under the Act?
Being covered by the Act
does not automatically mean that you can file a claim under the Act.
The following points explain the circumstances that prevent you from
filing a claim with the ministry.
- If you are covered by
a collective agreement and you believe that your employer broke the
laws, you cannot file a claim with the ministry. Instead, you may use
the grievance procedure.
- If you started a
court action against your employer for the failure to pay wages or
discrimination in benefit plans you can't file a claim with the
ministry for the same matter. Also, employees who have started a court
action for wrongful dismissal cannot file a claim for termination or
severance pay under the ESA for the same termination.
What do I need to file a claim?
You must fill out a Claim
Form that is available from the Employment Standards Program at the
nearest Ministry of Labour office. You will need information about your
problem, your employment and your employer. If the information
suggested is not available, it could make your claim harder to handle.
An employee needs to provide certain details about the employer and his
or her employment when filing a claim. The employee will be asked to
provide some or all of the following:
- Social Insurance
- copies of pay stubs
- copies of T4 slips
- a copy of his or her
written notice of termination (if the employee's employment was
terminated and/or severed by the employer and notice was given)
- a copy of the
employee's Record of Employment, if received
- a copy of the
contract of employment, if there is one
- copies of any warning
letters or notices received
- a record of the hours
worked if available (i.e., a calendar record, time sheets, attendance
records, diary or notes).
In completing the claim form, the employee must give details about:
- what happened (i.e.,
the employer didn't pay overtime; a cheque "bounced"; the employee was
- when it happened
(dates and times)
- why it happened
(i.e., why the employee was let go; why the employer didn't pay wages)
- who was involved
(i.e., names of employer, manager, supervisor, bookkeeper)
- any witnesses or
others who would support the employee's story
- what's being claimed
(including dollar amounts, if applicable)
- how the employee
tried to solve the problem with the employer (if the employee wrote to
the employer, a copy of the letter and mailing receipt).
In addition, the employee will be asked to give information about the
employer, such as:
- the employer's full
address and telephone numbers
- the employer's bank
(the bank employee cheques were drawn on)
- whether the employer
is still operating
- whether the employer
operates any other places of business.
Time limit on filing a claim
You have 6 months after the money came due to
file your claim. For example, you have $500 in wages due on the January
31, 2004 payday and you do not receive them. Your claim must be filed
with the ministry no later than July 31, 2004. However unpaid vacation
pay may be recovered if the claim is filed within 12 months of the date the vacation
pay came due (rather than 6 months).
If your employer has repeatedly broken the same part of your contract,
or the same rule in the Act, you have one
year to file your claim if some of the money became due during
the six months before filing the claim.
For example, your employer does not pay overtime and owes you $50 in
overtime for every weekly pay starting with January 30, 2004 and ending
on November 27, 2004 when you quit your job. Your claim for the
overtime pay must be filed with the ministry no later than January 30,
Two-year time limit for filing a claim
The six-month/one-year limitations on recovery only apply to an
employee's ability to seek recovery of unpaid wages, including vacation
pay. In some cases, the employee has two years after a violation to
file a claim with the Ministry. This two-year time limit applies where:
- The employee believes
an employer has violated a non-monetary section of the ESA for example,
if the employer didn't give proper meal breaks, or failed to provide
wage statements; or
- The employee is
seeking compensation and/or reinstatement—for example, if the employer
has penalized or threatened to penalize an employee for exercising
rights under the ESA. These rights include:
- asking the employer
to comply with the ESA
- asking questions
about rights under the ESA
- filing a complaint
under the ESA
- exercising or trying
to exercise a right under the ESA
- giving information to
an employment standards officer
- taking, planning on
taking, being eligible or becoming eligible for an emergency leave,
family medical leave, or parental or pregnancy leave
- being subject to a
garnishment order (i.e., to have a certain amount deducted directly
from wages to satisfy a debt)
- participating in a
proceeding under the ESA or section 4 of the Retail Business Holidays
- refusing to take a
lie detector test
- refusing Sunday work
(for certain retail workers only).
Extending Time Limits
The six-month/one-year and two-year time limits described above are set
out in the legislation and are mandatory. However, it may be possible
to make a claim that would otherwise be outside the applicable time
- an employee has been
misled as to his or her entitlements under the ESA by his or her
employer and for that reason delayed in filing his or her claim; and
- the employee took
prompt steps to file a claim after he or she found out that what the
employer said about the ESA entitlement was inaccurate.
For example, an employer has stated that no overtime is payable under
the ESA to an employee in certain circumstances and the employee relies
upon the employer's statement and does not file a claim for overtime
until after he or she finds out from another source that overtime is
payable under the Act. In such a case, an employment standards officer
may rule that the time limit that would otherwise not allow all or a
portion of the claim should be extended because the delay in filing the
claim was caused by the incorrect statement of the employer about the
employee's ESA entitlements.
Note: If the time limit for filing your claim has passed, you may still
be entitled to the money you are owed, but you cannot recover it
through the Ministry of Labour. You may wish to consider taking legal
action, such as small claims court, to collect the money owing you. In
the case of bankruptcy, receivership or other insolvency, you should
contact the trustee or receiver who is managing the affairs of the
employer. You will then be asked to complete a form to claim the money
that the employer owes you.
If an employee decides to start a court action for the same matter
after filing a claim with the ministry, he or she should withdraw the
claim within two weeks of the date of filing it to ensure that he or
she will be allowed to start the court action.
Anonymous claims are not permitted but if you wish, you can request
that MOL not use your name and/or address during the investigation.
After you file a claim
An Employment Standards
officer will investigate your claim. This is usually done by contacting
your employer, inspecting your employer's records and checking with
other involved people.
After this, the Employment Standards officer decides if the Act was
followed or not. The officer will let you and your employer know what
the decision is. If the officer decides the Act was not followed,
he/she will tell you and your employer how the claim may be resolved
under the Act.
If your employer does not resolve your claim, the officer may tell your
employer in writing to resolve the claim. This is called "a written
order" and it is a legal notice.
The maximum that an employer can be ordered to pay you is $10,000.
There may be some exceptions such as pregnancy and parental leave.
You can apply for a review of a decision. But you must apply not
later than 30 days after the date that the officer's letter is mailed
to you informing you of the decision not to issue an order.
If the officer wrote an order, your application for a review must be
made not later than 30 days from the date of the order. Your employer
can also apply for a review. The application may result in a hearing
that will lead to a final decision.
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