December 6, 2023
The Employment Standards Act (ESA) gives the Director broad powers of investigation and inspection. The Director has the power to enter any place, during working hours, where work is being done by employees, where the employer carries on business, where a record required for the purposes of the Act is kept, or where anything to do with the Act has taken place. The Director also has the power to inspect and question a person about any work, material, appliance, machinery, equipment or any other thing in that place, and to inspect records that may be relevant to an investigation. In addition, the Director may remove a record from that place, require a person to disclose a matter required under the Act under oath, and require a person to produce any records for inspection to the Director.
Amendments to the investigations process came into force in 2021. For any complaints filed after August, 15, 2021, the Employment Standards Branch Director has the discretion to conduct, stop, or postpone an investigation regardless of whether a complaint has been filed in order to determine whether an employer is in compliance with the Employment Standards Act.
Additionally, an employee can now file a complaint directly with the Employment Standards Branch without first needing to use a self-help kit or address the matter with their employer.
When a complaint is received, the director must first determine if it is validly submitted pursuant to Section 74. This includes the complaint being in writing, and – if made in relation to a terminated employee – being delivered within 6 months of the last date of the subject of the complaint’s employment.
If valid, the Director must review the complaint and it determine if there is enough evidence to proceed. If there is, the Director must investigate the complaint, and/or consider an alternative dispute process such as mediation.
The Branch will typically offer mediation at the outset. Mediation is voluntary. If the parties agree to attend mediation, a mediation officer will be assigned.
In the event the parties are able to resolve the complaint, the mediation officer will in all likelihood draw up a settlement agreement setting out the terms of the resolution. The settlement agreement should include a release by the employee of the employer in respect of liability under the ESA. The Director must ensure that the terms of the settlement agreement are complied with and arrange for payment to be made to any party receiving money under the agreement.
If the complaint is not resolved at mediation, the Branch may assign a complaint hearing officer to adjudicate the complaint. The Branch will determine whether the adjudication will proceed by way of written submission or oral hearing. The parties will receive a notice of the decision to hold a hearing or require submissions by a certain date.
Once an adjudication is complete, the officer will decide the matter and issue a determination of the complaint. If an oral hearing is held, the Branch’s preference is for officers to provide a written decision and oral reasons immediately. However, the officer may decide to reserve the decision and provide a written decision at a later date.
If the officer is satisfied that the employer has not contravened the act or its regulations, they must dismiss the complaint. However, if the officer is satisfied that the employer has contravened, there may be an imposition of liability for unpaid wages and monetary penalties.
For more information concerning these remedial powers, visit Employment Standards Act – Determinations and Consequences and Employment Standards Act – Monetary Penalties.
For more information see the Employment Standards Branch Fact Sheet
For more information about investigation and inspection powers, visit the Interpretation Manual – Section 85 – Compliance Investigations.
Information provided by Ryan Anderson, employment lawyer, and Jakob Sanderson, articling student, with Mathews Dinsdale & Clark LLP. The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.
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