Ministry of Labour Ontario: The Procedures for Claims and Complaints

The Ontario Ministry of Labour, Training and Skills Development oversees, promotes, and regulates labour relations in the province. It is responsible for promoting and enforcing two major legislations — the Ontario Employment Standards Act (ESA) and the Ontario Occupational Health and Safety Act (OHSA).  The Ministry of Labour Ontario is in charge of enforcing employment standards, managing workplace disputes, preventing workplace injuries and illnesses, and ensuring workplaces function in compliance with health and safety regulations.

It is critical that employers understand their obligations and are compliant with Ministry of Labour Ontario regulations. Failure to comply with labour laws could lead to fines, penalties and even prosecution.

What are some other functions performed by Ontario Ministry of Labour?

The Ontario Ministry of Labour collaborates with agencies such as the Workplace Safety and Insurance Board (WSIB) and the Health and Safety Associations, to prevent workplace injuries and fatalities. It partners with the Workplace Safety and Insurance Board to provide support to injured workers.

It is also responsible for developing and promoting health and safety awareness and training programs.

The Ministry of Labour Ontario conducts regular workplace inspections to ensure workplaces are operating in compliance with the Employment Standards Act and the Occupational Health and Safety Act.

To enforce the Ontario ESA, the Ontario Ministry of Labour educates employers and employees on their rights and duties. It investigates complaints related to employment standards and OHSA violations and initiates prosecutions. The Ontario Ministry of Labour also manages skilled immigration to Canada.  

What is the Employment Standards Act 2000 (ESA)?

The Employment Standards Act (ESA) is the main legislation used to regulate employment in Ontario. The ESA sets down the minimum standards for basic conditions of employment in the province, such as minimum wage, leaves of absence, work hours, etc. It also outlines employer and employee rights and duties.

All Ontario workplaces are covered by the province’s employment standards legislation, with some exceptions such as federally regulated workplaces and other special categories.    

What are some critical employment standards all Ontario employers must follow?

The Employment Standards Act 2000 (ESA) establishes the minimum standards for basic conditions of employment in Ontario. The standards set apply to your workplace even if you don’t mention them in your work contracts. But they are a basic minimum requirement. Employers can offer more benefits and rights to staff if they wish to. Some important employment standards employers must comply with are the rules on hours of work, minimum wage, vacation time and pay, public holidays, leaves of absence, keeping employee records and termination notice and pay. 

Employers in Ontario who are covered by the ESA also have to share a copy of the Employment Standards Poster with their staff. 

You can read more details on each of these requirements in our blog on the Ontario Employment Standards Act.  

What are some basic employee rights under the Ontario ESA?

The Ontario ESA defines an employee as a person who “performs work for an employer” or “supplies services to an employer for wages”.

Employee rights under Ontario ESA include:

• minimum wage
• overtime pay
• public holidays
• vacation with pay
• notice of termination or termination pay

Employers can’t treat workers who fit the definition of an employee under the ESA as if they are not employees. Doing so may lead to a notice of contravention and the employer may incur a penalty, a prosecution, or both.

Employers are also free to offer greater rights and benefits to their employees under an employment contract or collective agreement than the minimum standards set in the ESA.

How does the Ministry of Labour Ontario ensure compliance with the ESA?

The Ministry of Labour Ontario provides information resources for employers and employees to encourage voluntary compliance. It also enforces compliance with the Ontario Employment Standards Act through investigation of claims, complaints, and proactive inspection of workplace practices and payroll records.  

ESA claims

If an employer violates the employee’s rights provided under the Employment Standards Act (ESA), the employee can file a complaint with the Ministry of Labour Ontario. An example of an ESA violation would if employees are paid incorrect wages or not provided their pay statements. Or if an employer denies an employee any of the leaves of absence that they are entitled to under Ontario’s Employment Standards Act.    

The Ministry of Labour Ontario will assign an employment standards officer to investigate the complaint.  

The employer also gets a chance to participate in the probe. The officer may ask the employer to provide evidence, records, or other relevant information. If the investigating officer finds that employee rights have been infringed by the employer, the employer will be required to fix the violation. The employer may also be prosecuted. 

What happens during an ESA inspection?

The Ministry of Labour Ontario ensures employee rights are protected under the ESA through proactive inspections. This means employment standards officers may visit your workplace even if no claims or complaints have been filed against you by an employee. Usually, the officers provide employers with a notice of the visit ahead of time.    

The officers visit workplaces to create awareness and educate employers and employees about their obligations and rights under the Ontario Employment Standards Act.  They may ask to review your records and documents and speak to you and your employees.  

Depending on the severity of the violation or issue of non-compliance, they may help the employer remedy any workplace practice/policy that isn’t compliant with the ESA or decide to take enforcement action. 

How does the Ontario Ministry of Labour carry out prosecutions?

Employers who violate the ESA may be prosecuted by the Ontario Ministry of Labour. The prosecutions may lead to court order and penalties. If the violator is an individual, they may also get jail time. Even directors of corporations can be held personally liable, fined, or jailed for the violations committed by their company. 

How can employees file a claim with the Ministry of Labour for an alleged ESA violation?

Employees have the right to file a free online claim with the Ministry of Labour Ontario if their employer violates the ESA or the Employment Protection for Foreign Nationals Act (EPFNA) or the Protecting Child Performers Act (PCPA).   

But employees must file the claim within two years of the alleged violation of the ESA. This is called the recovery period. The time limit for filing a claim for an alleged EPFNA violation is three-and-a-half years. Once a claim is filed within the recovery period, an employment standards officer will investigate the claim. 

Please note that from March 16, 2020, to September 13, 2020, the recovery period was temporarily paused due to COVID-19. This time won’t be considered towards the two-year limit for recovery periods.  

It is illegal for employers to threaten or penalize an employee for filing or trying to file a claim. Employers that punish employees may be ordered to pay hefty compensation to the employee.  

For more information or assistance with filing claims, employees can contact the Employment Standards Information Centre toll free at 1-800-531-5551 or at 1-866-567-8893 for the teletypewriter (TTY) service for the hearing impaired. 

In what cases can a claim not be filed?

An employee can’t file a claim if they have taken court action against the employer. The same applies if the employee is represented by a union and comes under a collective agreement.  

Federal employees cannot file a claim with the Ontario ESA. Employees wanting to file a complaint about occupational health and safety or human rights violation or with the Workplace Safety and Insurance Board (WSIB) are also not eligible to file an ESA claim.  

How does the Ministry of Labour Ontario ensure compliance with the Occupational Health and Safety Act (OHSA)?

The Ministry of Labour enforces compliance with the Occupational Health and Safety Act through health and safety audits of provincially regulated workplaces. Health and safety inspector trained by the Ministry of Labour Ontario (MOL) carry out the inspections and can issue orders and carry out prosecutions under the Provincial Offences Act (POA). Under this Act, the MOL health and safety inspectors are appointed as Provincial Offences Officers (POA). 

On what grounds can inspectors conduct workplace health and safety inspections?

The health and safety inspections can be both reactive and proactive. Reactive audits are in response to a work refusal, critical injury, fatality, or a complaint. Employers should immediately report a critical injury or fatality in the workplace to the Ministry of Labour Ontario. On receiving intimation, the Ministry send an inspector to investigate. After completing the investigation, the inspector may issue remedial orders and or advise that charges be filed if the employer has violated the OHSA. 

Proactive visits by inspectors are typically unannounced. 

What happens during a proactive health and safety inspection?

During a typical proactive visit, the inspector may show up at your workplace unannounced. They will show their identification and ask to speak with a member of the management and the health and safety contact person. They may also want to talk to the health and safety representative or a member of the joint health and safety committee in your workplace. 

The inspector will examine all documentation under the OHSA that employers must have. The inspector will survey your workplace to see if you are compliant with the OHSA regulations. The inspector is also within their rights to interview you or any of your employees. If they like, they may test any equipment or take samples, photographs, and measurements. The inspector may issue compliance orders or ticket for fines if they find any OHSA violations or safety hazards in the workplace. Employers must comply with the orders.  

The inspector will give you a written field visit report that contains a summary of their findings at the end of the inspection. You must display a copy of that report in your workplace. You must also share a copy with the health and safety representative or a member of the joint health and safety committee. 

What other enforcement powers do Ministry of Labour inspectors exercise?

Besides inspections and investigation of complaints, the officers can initiate prosecution under the POA for OHSA violations. If an inspector has reason to believe that an offence has been committed under the OHSA, they may begin a prosecution against the offender. 

To ensure compliance, inspectors can also issue orders and tickets. A compliance order is issued to remedy a violation of the legislation. But if there is an immediate risk of harm or injury to the employees, the inspector will issue a stop work order and shut down the workplace. In this case, work cannot be resumed till the hazard is dealt with. 

Not complying with the inspector’s orders can lead to prosecutions.  

Employers also receive a Notice of Compliance form along with the orders. You are required to complete the form and mail it back to the inspector. Your workplace health and safety representative or a member of the joint health and safety committee must provide their opinion on the form as to whether they agree that you have complied with the orders.  

You can resume work after informing the inspector of your compliance with the order. But there may be a second inspection to confirm compliance. 

Can employers appeal an inspector’s order?

The Ontario Occupational Health and Safety Act offers a provision of appeal to any employer, constructor, licensee, owner, worker, or trade union affected by the decision of an inspector. 

The affected party should contact the Ontario Labour Relations Board (OLRB) to file an appeal. But this must be done within 30 days of the order’s issuing date.  

The OLRB may either suspend the order until a decision on the appeal is made or uphold the order, annul it, or give out a new order.  

What is the Workplace Safety and Insurance Board (WSIB)?

The WSIB is the workers’ compensation board for provincially regulated workplaces in Ontario. It operates as an arm’s length agency of the government of Ontario and reports to the Minister of Labour. The WSIB provides no-fault collective liability insurance, wage-loss benefits, and healthcare coverage for employees. It also offers support for returning to work after an illness or injury to workplaces that come under the Workplace Safety and Insurance Act (WSIA). The WSIB also provides sector-specific health and safety information to employers. It is entirely funded by employers.  

How does workplace insurance work?

Workplace insurance provides benefits and support to employees who are injured at work or contract an occupational illness. If a workplace has WSIB coverage, the employees get workplace insurance without having to prove that the employer was to blame for the injury or illness. Even if the injury is the employee’s own fault, they’d still get compensation in most cases.  To avail of workplace insurance, employers need to file a claim with the Workplace Safety and Insurance Board (WSIB). 

Is it mandatory to get WSIB coverage?

No. It isn’t mandatory for all workplaces to get WSIB coverage. The Workplace Safety and Insurance Act (WSIA) mentions the industries and category of employees that must get WSIB coverage.  

If a business is not listed in the WSIA but wants coverage, they can apply for it.   

What is the procedure for businesses to report an employee’s injury or illness?

An employer must report a worker’s injury or illness in the workplace within three days of learning about it if the employee needed treatment from a medical health professional after the accident, or had to take leave from work, or earned less than their regular pay. 

If the employee only needed first aid as treatment, the injury need not be reported to the WSIB. Employers are advised to keep records of the treatment given.  

If the employee needs more than first aid, the employer should either take them to a medical professional or pay the cost of fare for the same on the day of the injury.  If an employee did not need to see a medical professional, employers must still report their injury or illness if they do modified work at regular pay for more than seven days.  

The next step is documenting. Employers must keep detailed records of the incident and the remedial measures taken to fix the issue. 

The employer obligation to report employee injury or illness applies to all employees. This includes seasonal workers, temporary employees, some domestic employees, construction workers, students, apprentices, training participants, and family members. 

Is there a reporting deadline for reporting injuries to WSIB?

Yes. The WSIB claim must be filed within six months from the date of the workplace accident or the date the employee learnt about their occupational illness.  

What can employees do if an employer refuses to report their accident to the WSIB?

It is illegal to discourage reporting of a workplace injury or illness. Employers could receive a financial penalty as well as prosecution for not reporting, reporting late, not providing complete details, giving false or inaccurate details, or discouraging staff from reporting injuries or illnesses. 

In such a scenario, the injured worker can report their work-related injury to the WSIB on their own at 1-800-387-0750. The employee can also complete a Worker’s Report of Injury/Disease (Form 6) and send a copy to the WSIB. 

On receiving the report, the WSIB contacts the employer for the Employer’s Report of Injury/Disease (Form 7). Employees should also speak to their doctor about the injury and ask that they send a Health Professional’s Report (Form 8) to the WSIB on their behalf.   

Can employers and employees appeal a WSIB decision?

Yes. Employers and employees can appeal a decision the WSIB makes in a claim. The WSIB has two levels of appeal. The first is the Appeals Services Division, which is internal to the Board. In case a worker or employer disagrees with the decision of the Appeals Services Division, they can appeal to the Workplace Safety and Insurance Appeals Tribunal, which is external to the WSIB.

How to respond to employee complaints to the Ministry of Labour

Employers who have been notified of a workplace complaint are likely to have concerns about how to respond or navigate the process. For those wishing to resolve the claim, here are the three options that the Ministry usually provides the employer.

The first is a voluntary payment. To resolve a claim prior to an investigation commencing, you may choose to pay the amounts claimed to the claimant

The second is by entering into a settlement with the claimant. If both parties agree on a settlement, then the claim is considered withdrawn and any investigation relating to that claim will cease.

The final option is where employers may choose to dispute a claim and commence an investigation. This involves both parties having the opportunity to present their arguments and evidence.

Responding to an employee’s complaint to the ministry can often be a complicated process. While the Ministry has resources to help employers do so, these should not be a substitute for legal advice. We recommend talking to one of our experts who can guide you through the process.

Do you need help developing HR and health & safety policies for your workplace?

Peninsula can help. Our experts can assist you with company policies and with any other human resource management, health & safety, or employment advice you may need. To learn more about how our services can benefit your business, call us today at 1 (833) 247-3652