Worker's Rights

The daily limit on hours of work is 8 hours a day or the number of hours in the regular work-day established by your employer. An employer cannot make their employees work more than this amount except in the case of accidents or emergencies, which are defined as urgent situations that have not been planned for. The weekly limit on hours of work is 48 hours per week.

If an employee agrees in writing, an employee can be required to work more than 8 hours in a day (up to a maximum of 13 hours) and 48 hours in a week (up to a maximum of 60 hours). An employee has the right to refuse to sign any agreement that extends the maximum hours of work. If an employer penalizes an employee for refusing to sign an agreement, the employee can bring a complaint against the employer to the Ministry of Labour.

Employees in the retail sector have the right to refuse to work on public holidays without being penalized unless they work in the hospitality industry (i.e., places which sell meals, accommodation, or are open to the public for educational, recreational or amusement purposes).   They also have the right to refuse work on Sundays, unless they agreed otherwise, in writing, at the time of hiring and if their hiring took place on or after September 4, 2001. Employees may refuse to consent to working on Sunday, even at the time of hiring, for religious reasons.

Overtime            

Under the Employment Standards Act an employee is generally entitled to overtime at a rate of one-and-a-half times the employee’s regular wage after the employee has worked 44 hours in a single work week.

Meal breaks

An employee cannot be required to work more than 5 consecutive hours without receiving a 30 minute unpaid meal break. An employee may agree in writing to two 15 minute unpaid breaks instead of the 30 minute break.

Emergency leave

Employees who are employed by an employer who regularly employs at least 50 employees are entitled to 10 days emergency leave per year for absences due to the death, illness, injury, medical emergency of, or other urgent matters relating to: a spouse or same-sex partner; a parent, step-parent, foster parent, child, stepchild, foster child, grandparent, step-grandparent, grandchild, step-grandchild of the employee; the spouse or same-sex partner of an employee’s child; a brother or sister of the employee; and a relative of the employee who is dependent on the  employee for care or assistance. 

Employees are required to advise their employer that they are taking a leave. An employer may require an employee to provide evidence reasonable in the circumstances that the employee is entitled to the leave.

Termination of Employment

An employer cannot terminate an employee for enforcing his/her rights under the ESA including;

• refusing to work excess hours,
• refusing to take a lie detector test, or,
• as a result of taking a pregnancy, parental or emergency leave.

The statute provides for the minimum notice entitlement for employees. Employees may be entitled to greater notice at common law and are free to take legal action through “wrongful dismissal” actions in court. It should be pointed out however, that employees who decide to take actions in court forfeit their right to have the Employment Standards branch enforce their rights under the Act. Notice of termination is required in writing when the employer:

• dismisses an employee,
• constructively” dismisses the employee by significantly altering fundamental terms and conditions of employment and 
• the employee resigns as a result, where the employer lays-off employees if the lay-off is not temporary in nature.

The employer must provide employees who have been employed for 3 months or more with a written notice of employment termination. If no notice of termination is provided, the employer must pay the employee in-lieu of such notice. This “pay in lieu” or termination pay is a lump sum payment that is equal to the regular non-overtime wages the employee would be paid during the period of notice. The employer must also continue to make whatever benefits plan contributions the employee would have been entitled to had the employee continued in employment during the notice period. If the employer fails to make such payments the amounts that have not been paid are deemed to be unpaid wages owing to the employee.

Wrongful dismissal:

Terminated employees may sue their employers in court for “wrongful dismissal”. Such actions are based on the principle that an employee is ordinarily entitled to a reasonable notice period prior to dismissal. Such actions may not be open to employees hired for a specific term or who have agreed in advance to a notice period (provided the notice period equals or exceeds the ESA minimum.)

Once civil action is taken in a court, employees lose their protection under the ESA. Similarly the filing of an ESA complaint will bar a court action unless it is withdrawn within two weeks. However, civil court action can, in certain circumstances and particularly for long-service employees, result in greater amounts being awarded than would be paid in termination or severance pay, although legal costs may make such actions inadvisable in particular cases.

Employees cannot be terminated for:

• Requesting that their employer to comply with the Act or the Regulations
• Making inquiries or filing a complaint under the Act
• Exercising or attempting to exercise rights under the Act
• Giving information to an employment standards officer
• Testifying in proceedings under the Act
• For taking or planning to take a pregnancy, parental or emergency leave under the Act

In the case of retail workers, for exercising their right to refuse to work on Sundays or holidays. The Human Rights Code of Ontario (OHRC) guards against the discrimination and harassment of individual workers in the workplace and individual applicants throughout the job search process.

Discrimination

 The OHRC protects the right of every person to equal treatment in services, accommodation, and employment without discrimination on prohibited grounds. The prohibited grounds include race, ancestry, place of origin, citizenship, creed, sex, sexual orientation, age, marital status, same-sex partnership status, family status or disability.

An employer must have a very good reason (referred to as a “bona fide qualification”) for any discrimination in employment and a qualification will not be found to be bona fide if the person discriminated against can be accommodated without undue hardship. An employer cannot discriminate in employment advertising, employment interviews or in employment application forms on one of the prohibited grounds of discrimination. For example, a job advertisement asking for “recent graduates” is in effect telling older people not to apply. Similarly, an ad cannot ask for “able-bodied persons”. However, an ad can indicate that heavy lifting or a lot of walking is required.

No job application form can ask for any information, even indirectly, about any of the prohibited grounds of discrimination (including any information about physical or mental health).

Harassment

Harassment is defined as engaging in a course of vexatious comment or conduct that is known or ought reasonably be known to be unwelcome. Harassment can result from insults, jokes, degradation, or discrimination. If the employer allows harassment or fails to prevent it from occurring the employer may be liable.

Complaints

If an employee feels that they have been sexual harassed they should tell the person responsible to stop, or they can complain to their supervisor (union steward or union representative in a unionized workplace). A record of the occurrence should be kept, including what was said or done, who was involved, where and when it happened and the names of any witnesses. If the harassment does not stop, a complaint can be made to the Ontario Human Rights Commission, which will investigate the matter.

All complaints must be made within 6 months of their occurrence. The Human Rights Commission may extend the time where there is sufficient reason for the delay and there is no prejudice caused as a result of the delay.

Worker’s Rights

General minimum wage - This rate applies to most employees.

Student Wage - This rate applies to students under the age of 18 who work 28 hours a week or less when school is in session, or work during a school break or summer holidays.

Liquor Servers Wage - This hourly rate applies to employees who serve liquor directly to customers or guests in licensed premises as a regular part of their work. "Licensed premises" are businesses for which a license or permit has been issued under the Liquor Licence Act.

Hunting and Fishing Guides Wage - The minimum wage for hunting and fishing guides is based on blocks of time instead of by the hour. They get a minimum amount for working less than five consecutive hours in a day, and a different amount for working five hours or more in a day--whether or not the hours are consecutive.

Homeworkers wage - Homeworkers are employees who do paid work in their own homes. For example, they may sew clothes for a clothing manufacturer, answer telephone calls for a call centre, or write software for a high-tech company. Note that students of any age (including students under the age of 18 years) who are employed as homeworkers must be paid the homeworker's minimum wage.

Deductions from wages - Employers cannot make deductions from employees’ pay cheques for any mistakes or loss due to faulty workmanship, cash shortages or lost or stolen property, where the employee did not have total control over the cash or property (i.e., if other people have access to cash or property).