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How to file a claim

Generally, most employees covered under the ESA may file a claim with the Ministry of Labour if they believe their employer is not complying with the Act.

However, before filing a claim you may want to try to resolve the matter first with your employer. You can get a Self-Help Kit from the Ministry of Labour that contains a form letter you can send to your employer. The Self-Help Kit is available at ServiceOntario Centres and online from the Ministry of Labour.

If you are unable to resolve the matter with your employer, fill out a claim form. Claim forms are available at ServiceOntario Centres and online from the Ministry of Labour.

Call the Employment Standards Information Centre at 416-326-7160 or toll-free at 1-800-531-5551 for information on where to file your claim.


Table of Contents
  1. What is a claim?
  2. Are there any situations in which I cannot file a claim?
  3. How do I file a claim?
  4. What happens after I have filed a claim?
  5. How is the claim investigated?
  6. What is a fact-finding meeting?
  7. Can an employment standards officer make a decision about a claim at a fact-finding meeting?
  8. What if my employer does not attend the fact-finding meeting?
  9. What happens after the employment standards officer has made a decision?
  10. What if the officer's decision is that my employer did not follow the ESA?
  11. What if the officer's decision is that my employer followed the ESA?
  12. What if my employer does not follow the ESA?
  13. Can I see the ESA?

What is a claim? Top

A claim is a form that contains a written statement of your concern as well as other important information about the employer and the employment standard(s) that forms the subject of your claim.

Are there any situations in which I cannot file a claim? Top

There are two situations in which you cannot file a claim.

  1. Generally speaking, employees represented by a union can't file a claim with the ministry. If you are represented by a trade union and are covered by a collective agreement (whether or not you are actually a member of the union), your claim, if it is to be pursued, must be pursued through the grievance procedure contained in the collective agreement between the employer and the trade union.
  2. If you have already started a court action against the employer for failure to pay wages or for discrimination in benefit plans, you cannot file a claim with the ministry for the same matter. In addition, if you have started a court action for wrongful dismissal, you cannot file a claim for termination pay or severance pay under the ESA for the same termination.
How do I file a claim? Top

You must complete a claim form which can be obtained from a ServiceOntario Centre. The claim form can also be printed or filed electronically from the Ministry of Labour website.

You can find out more about filing a claim here:
http://www.labour.gov.on.ca/english/es/pubs/guide/esclaim.php

What happens after I have filed a claim? Top

Once you have filed a claim, it will be assigned to an employment standards officer for investigation. In most cases a formal investigation is not begun immediately. Instead, ministry staff may contact the employee and employer and encourage them to resolve the matter.

If the issue still can't be settled, the file is then assigned to an employment standards officer for a full investigation.

How is the claim investigated? Top

During an investigation, both the employer and you have the opportunity to present the facts and arguments you believe are relevant to the case. As well, the employer or you may be asked to provide the officer with documents and records.

The officer may conduct an investigation by telephone, through written correspondence, by visiting the employer's premises or by requiring both you and the employer to attend a fact-finding meeting.

What is a fact-finding meeting? Top

A fact-finding meeting gives you and the employer the opportunity to provide your story to the employment standards officer in person.

The employer and the employee may bring along any other documents or information they believe will support their case. They are also allowed to bring their lawyer or someone else who is acting on their behalf. If the employee or the employer would like to bring witnesses, they should contact the officer before the meeting.

Can an employment standards officer make a decision about a claim at a fact-finding meeting? Top

In many cases, the officer is able to give a decision at the end of the fact-finding meeting. This allows both you and the employer to discuss how the matter will be resolved with the officer. In other cases, the officer may need further information before making a final decision.

What if my employer does not attend the fact-finding meeting? Top

If an employer or an employee fails to attend a fact-finding meeting without good reason, the officer may make a decision based on the evidence presented at or before the meeting.

What happens after the employment standards officer has made a decision? Top

After an employment standards officer has reviewed all of the evidence gathered during an investigation or inspection, he or she makes a decision. The officer may decide that the employer has followed the ESA or that a violation of the Act has occurred.

What if the officer's decision is that my employer did not follow the ESA? Top

If the officer finds that your employer has contravened the ESA, your employer has the opportunity to resolve the issue by voluntarily complying with the officer's decision. This may mean that the employer will have to pay money that is owing to you. It could also mean that your employer must change a workplace practice or adopt a new workplace practice.

An employment standards officer can also require your employer to post a notice containing specific information about the administration or enforcement of the ESA.

If the employer is unable or unwilling to voluntarily comply with the employment standards officer's decision, the officer can issue one or more of the following:

  • An Order to Pay Wages (to pay unpaid wages)
  • An Order for Compensation and/or Reinstatement (to remedy violations of rights related to leaves under the ESA, the use of lie detectors and the right not to be penalized for exercising rights under the ESA, for example). See Reprisals
  • A Compliance Order (to cease violating the ESA)
  • A Notice of Contravention (with a prescribed penalty for violating the Act)

Both you and your employer have the right to apply for a review of an Order. A Notice of Contravention can be appealed only by the party against whom it has been issued. An application for review, setting out the facts and reasons for the application must be filed within 30 days of the date of service of an Order, or letter advising of the Order or service of the Notice of Contravention. The application for review should be sent to:

The Registrar
Ontario Labour Relations Board
505 University Avenue
2nd Floor
Toronto, Ontario, M5G 2P1

What if the officer's decision is that my employer followed the ESA? Top

If the officer does not find a violation, you will be notified of this decision in writing. You have the right to apply for a review (appeal) of the decision within 30 days of the date of service of the letter advising you of the officer's refusal to issue an Order. The application for review should be sent to the above address.

What if my employer does not follow the ESA? Top

What if I think my employer is not following the ESA?

Can I see the ESA? Top

Employment Standards Act,2000

Resources Top

Government:
Ontario Ministry of Labour
Your Guide to the Employment Standards Act: Filing an Employment Standards Claim




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