Navigating the Ministry of Labour Claim Process: a How-to Guide for Employees

If you’re an avid reader of our blog or a regular listener of our radio show – the Employment Law Show with Lior Samfiru – you’ll know that contacting the Ministry of Labour for advice on a severance package is a bad idea, plain and simple. Why, you ask? Because the Ministry of Labour can only advise you on your minimum entitlements under the Ontario Employment Standards Act. It cannot advise you on what your full severance entitlements are. Only an employment lawyer can do that. And so, if you do contact the Ministry regarding your severance package, the advice you receive will be, at best, only partially true.

That kind of “advice” can end up costing you tens of thousands of dollars in severance! Hence why we tell all of our readers and listeners: when dealing with any employment issue, be it a wrongful dismissal, a temporary layoff, a proposed change in pay, or a severance offer, the first thing you need to do, before accepting any offer from your employer or contacting the Ministry of Labour, is speak with an experienced employment lawyer as soon as possible.

Now, having said all of that, there are certain, rare circumstances in which filing a claim with the Ministry of Labour may very well be the best course of action for an employee. For example, if your employer is not paying you the proper amount of vacation pay, or refusing to pay you overtime pay, filing an employment standards claim with the Ministry may be the most efficient and cost-effective way of resolving such disputes. Your lawyer may in fact recommend that you file a claim with the Ministry, and in such circumstances, it is important that you know how to navigate the claim process.

A very brief disclaimer: this process is available to the vast majority of employees in Ontario, but not all employees. If you are unionized, or work for a federally-regulated employer (a bank or telecommunications company, for example), you cannot file a claim with the Ministry of Labour, although you certainly have other options available to you.

The Ministry of Labour Claim Process

Filing a claim with the Ministry of Labour is a fairly straightforward process. Application forms can be found online on the Ontario Ministry of Labour website. The application form will advise you to first contact your employer to try to solve the problem yourself before you file a claim. However, you do not have to contact your employer in cases where:

• You have already tried to contact the employer;
• Your workplace has closed down;
• You are afraid to do so;
• You are or were working as a Live-In Caregiver;
• You are a young employee; or
• There is any reason relating to a ground under the Ontario Human Rights Code.

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You can file your claim online, by fax or send it by mail. An Employment Standards Officer (“ESO”) will then be assigned to your case. The ESO is responsible for investigating your claim. You may be asked to explain the kind of work you do, the exact nature of your claim, and what happened when you contacted your employer yourself. The ESO will also ask your employer questions about your claim and get more information from them. The employer can also be asked to provide paperwork like pay cheques, proof of payment or timesheets.

You may also be asked to attend a settlement meeting with the ESO and your employer. You will need to bring all the information and documentation you have regarding your claim. Both you and your employer will have the chance to show evidence and tell your side of the story. Through this process, you may be able to reach an agreement or “settlement” with your employer. If you and your employer cannot come to an agreement, the ESO will make a final decision based on all the information and facts.

Once a decision is made about the claim, you will receive written notice from the Ministry of Labour with all the details about the decision. If you win, your employer will receive an “Order to Pay” and will have 30 days to pay you. The whole process, from filing your claim to getting a final decision, can take 3-6 months or longer.

If you (or your employer) do not agree with the ESO’s decision, you can appeal the decision to the Ontario Labour Relations Board (the “Labour Board”). Application for Review forms and a useful information bulletin (with detailed information about the appeal process) can be found online.