Employment Law

Employment Standard Act, 2000 (ESA)

The Employment Standards Act (ESA) aims to protect workers and ensure fair treatment in the workplace while balancing the interests of employers. The ESA is a set of laws and regulations that establish the minimum standards for working conditions and employment practices. The focus of the ESA typically includes:

Minimum Wage
  • The ESA sets the minimum wage that employers must pay their employees. The rate may vary for different categories of employees, such as students, liquor servers, and home workers.
Hours of Work and Overtime
  • Standard work hours are eight hours a day and 44 hours a week.
  • Overtime pay, which is 1.5 times the regular rate, is required for any hours worked beyond 44 in a week.
Rest Periods and Breaks
  • Employees are entitled to at least 11 consecutive hours off work each day.
  • A 30-minute meal break is required for every five consecutive hours worked.
Public Holidays
  • There are nine public holidays in Ontario, including New Year’s Day, Canada Day, and Christmas Day.
  • Employees are entitled to take these days off with public holiday pay or receive premium pay if they work on these days.
Vacation
  • Employees are entitled to a minimum of two weeks of vacation time after completing 12 months of employment, with vacation pay equivalent to at least 4% of their gross wages earned in the 12-month vacation entitlement year.
  • After five years of employment, employees are entitled to three weeks of vacation.
Leaves of Absence

The ESA provides various types of leave, including:

  • Maternity Leave: Up to 17 weeks.
  • Parental Leave: Up to 63 weeks for mothers and fathers.
  • Personal Emergency Leave: Up to 8 days for personal illness, injury, or certain urgent matters (Note: This has been updated and now falls under personal leave).
  • Family Medical Leave: Up to 28 weeks to care for a family member with a serious medical condition.
  • Infectious Disease Emergency Leave: As needed during a designated infectious disease emergency.
Termination and Severance
  • Notice of termination or pay in lieu of notice is required if an employee has been employed for at least three months.
  • The amount of notice depends on the length of employment.
  • Severance pay may be required for employees with five or more years of service if the employer has a payroll of at least $2.5 million or if the termination is due to a permanent discontinuance of all or part of the business.
Equal Pay for Equal Work
  • The ESA prohibits pay discrimination based on sex, ensuring that employees performing substantially the same kind of work receive equal pay.
Wrongful Dismissal in Ontario

Wrongful dismissal under the Ontario Employment Standards Act (ESA) typically refers to situations where an employee is terminated without proper notice or without just cause. Employees may also pursue wrongful dismissal claims through the courts, seeking damages for the notice period they were entitled to under common law. In general, wrongful dismissal allegations may end up in the Ontario Labour Relations Board, Small Claims Court, or Human Rights Tribunal.

Notice of Termination
    • Under the ESA, if an employee has been employed for at least three months, they are entitled to notice of termination or pay in lieu of notice.
    • The required notice period varies based on the employee’s length of service:
      • 1 week for employment of less than one year.
      • 2 weeks for employment of 1 to 3 years.
      • 3 weeks for employment of 3 to 4 years.
      • 4 weeks for employment of 4 to 5 years, and so on, up to a maximum of 8 weeks.
Severance Pay
  • Severance pay is separate from termination pay and applies to employees with at least five years of service if:
  • The employer has an annual payroll of $2.5 million or more, or
  • The termination is due to a permanent discontinuance of all or part of the business that affects 50 or more employees within a six-month period.
    • Severance pay is calculated as one week’s pay for each year of service, up to a maximum of 26 weeks.
Just Cause
    • Employers can terminate employees without notice or pay in lieu of notice if there is just cause, such as serious misconduct, insubordination, or other significant breaches of employment terms.
    • Proving just cause is challenging and typically requires substantial evidence.
Wrongful Dismissal Claims
    • Wrongful dismissal claims are typically pursued through common law, not the ESA, and involve an employee arguing that they were terminated without adequate notice or just cause.
    • The common law generally provides for longer notice periods than the ESA, considering factors like the employee’s age, length of service, position, and availability of similar employment.
Constructive Dismissal
    • Constructive dismissal occurs when an employer makes significant changes to the terms of employment (such as demotion, reduction in pay, or significant change in job duties) without the employee’s consent, effectively forcing the employee to resign.
    • Employees can treat such changes as a termination and claim wrongful dismissal.