August 12, 2016 By: Alison McEwen

A recent study conducted for the Ministry of Labour found that employees in Ontario have lost out on $28 million in unpaid wages over the last six years. And these lost wages are just the ones where the Ministry of Labour failed to collect money that was owing to employees. Combine this failure to collect with the fact that less than 0.2% of employers who are guilty of monetary violations are ever prosecuted, and it becomes clear that there is a lot of money owing to Ontario employees that never makes it into their pockets.

Below are four tips for filing a complaint with the Ministry of Labour.

1. What does the Ministry enforce?

The Ministry enforces the clauses of the Employment Standards Act, 2000 (“ESA”). This covers everything from unpaid wages to overtime to notice or severance. What the Ministry of Labour can’t do is help you chase your common law notice. So, if your employment has been terminated, you will want to check what you are entitled to. If you are restricted to the ESA notice and severance, a complaint to the Ministry may work for you.

Another thing to think about is whether or not you are covered by the ESA. Unionized employees, for example, cannot usually file a complaint with the Ministry of Labour. Instead, they are required to go through the grievance process outlined in their collective agreement. So, if you are unionized, your best bet is to get in touch with your union as soon as possible.

You also cannot file a complaint if you have already started a civil lawsuit against your employer for the same ESA matter. If you are already in litigation, it will be important to check if the issue has already been covered there.

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2. Keep your documents!

If you are thinking of filing a complaint, the more documentation you have, the better. So start tracking the hours of overtime that you are working, or the days for which you have not yet been paid. Remember that if the matter gets to a hearing, you will have to show what you worked. A claim that says “I worked about 50 hours every week” is not as strong as a week-by-week breakdown of the hours you worked, and on what days.

Exactly which documents will be helpful will depend on your specific claim, so while not exhaustive, here are some to consider:

  • Employment contract (if there is one)
  • Bounced cheques (if your employer paid you, but it did not go through)
  • Worksheets, attendance records, or hour submission forms
  • Pay stubs (showing the last pay you got, or if the pay stubs are being issued but no wages are being paid to you)
  • T4 slips
  • Termination of employment letter (if there is one)
  • Record of Employment (if one has been issued)

Before even filing the complaint, it is a good idea to put together the documents to see what you have available to you. It is also a good idea to get a copy of any relevant documents and keep them somewhere other than your office, so that you always have access to them.

It is important to note that while having the relevant documents and tracking the hours is very important, you don’t necessarily need to file them with the initial claim (see more below).

3. Keep track of limitation periods

A limitation period is the time by which you have to do something, including filing your complaint.

This can be a little complicated, as there was a change to the limitation periods in 2015. For all unpaid wages, including vacation pay, that came due on or after February 20, 2015, a complaint must be filed within two years of the date the wages came due. So, if you were supposed to be paid on August 1, 2016, you could still file a complaint seeking those wages until August 1, 2018. If you filed the complaint on September 1, 2018, it would be too late.

If the money owing to you came due before February 20, 2015, it is a little more complicated, and you should probably consult a legal professional to determine if your complaint can still be filed.

Usually, the payment “comes due” on the regular payday. One exception to this rule, however, is if the employment relationship ends. Then, all of the wages owed to the employee (including any unpaid vacation pay) are due either within seven days of the date of the end of the employment relationship, or on what would have been the employee's next regular pay day, whichever is later. And if you allege your employer did not pay you enough, you have to file within two years of the date the money came due.

When an employer has violated a non-monetary standard (such as the limits on hours of work or a leave provision in the ESA), it is possible to get a compliance order, orders for compensation, or a reinstatement order for up to two years after a contravention has occurred.

4. What should I file?

It is important to follow the instructions on the complaint form as carefully as you can. It can be filed online, or filled out and sent in hard copy. It will probably be easier to fill out the form if you have the relevant documents at hand (see above), though you do not need to have those documents in order to file a complaint. Also, don’t send in the documents themselves until they are requested.

It is important to put in as much detail as possible, so make sure that you have the time to properly fill out the form. A rush job can lead to you leaving out important details that can be fundamental to your complaint. Make sure to fill out all parts of the form as well, as missing information can mean that there is a delay in processing your complaint.

While there used to be a limit on the amount of money you could claim for unpaid wages, this limit no longer exists for wages that came due on or after February 20, 2015.

Once you have submitted your form, you will be issued a claim number. Keep track of that claim number, as you will have to reference it on things you file at a later date. Make sure to keep track of dates as they come up, and adhere to all the timelines.

If you have any further questions about unpaid wages, or filing a complaint with the Ministry of Labour, feel free to contact our Employment Law Group.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2018 Nelligan O’Brien Payne LLP.

Service: Employment Law