Month: January 2013

Wrongful Dismissal it happens everyday .


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The ministry provides a wide range of publications and services to help employees and employers understand their rights and obligations. These include an employment standards poster, which employers are required to post in their workplaces, seven brochures, four of which are published in 23 languages; a variety of fact sheets covering topics such as domestic workers, agricultural workers, and young workers; and worksheets to help employees figure out how much they are owed. The ministry has also developed a number of online tools to assist employers and employees to understand the provisions of the Act, such as the Termination Tool, the Public Holiday Pay Calculator and the Severance Tool. The ministry is also involved in outreach initiatives such as information seminars and workshops for employer groups, employment Councillors, and professional associations. The following letter outlines a complaint an agency worker as files against his former employers.
To whom this may concern, I’m a former contract worker employed by the staffing solutions company People Store, to fill an on-going order with a company called VF Services Inc., 40 Hereford St, Brampton, ON L6Y 0N3 905-460-2810

I am requesting my record of employment for December and the month of January, 2013. I would like to submit these files to O.S.A.P repayment assistant program and unemployment insurance. Moreover, I will be contacting the ministry of labour to investigate this case.

So would like to explain the harassment I encountered at VF. I started the job in the month of March 2012…I had graduated from university the previous year. The job was fun-it was physical, however, that is what I had needed because I was overweight. As time went and you became more familiar with your surroundings-it was easy to open up people. By the second month of work I had a relationship that was private-low key-eventually this young lady returned to university. I did have one or two problems early that summer. The first problem involved a female security guard who took a liking to me-however; this affection was not returned amorously. Nonetheless, this female security guard persisted in trying to annoy or report me for things I did not do. The second problem involved a person who was not a worker at this company-this person was dropping a friend to work. The man pulled a knife on me because I blew my car horn-this man refused to let me pass. This incident was reported to manager and
It was resolved.

In September the two shifts merged to form one shift on days. Day shift is where I encountered the most hostility. On day shift I was liked by many people, however, there were a few jealous people. For example, I was questioned repeatedly about university. This person would then go around and tell people she could not believe that I graduated or attended university. To continue they would want to know my age-I would ask my fellow employees why they would want to know my age however, but they would not provide a reason why. They asked me numerous inappropriate questions. For example, I was accused of trying to impress the women because I would lift 40 to 70lbs boxes on to table for them. I was given the nickname ladies’ man; however, we had no skirt chasing going at work. Everything said and done I would honestly say-I never came unto anyone. I was never accused of sexual harassment. I did come to realize that if a female took attention to me or spoke to me-the female security guard that we mentioned she would always report this to supervisor. I knew I was being watched and did everything to keep away and stay out of trouble. To add to this point-the only people who hinted at sexual harassment was female security guard and male supervisors.

The next incident involved a worker who I was warned about-I was told that she has her ways and she has gotten numerous people fired. I was having a conversation with someone else and she accused me of swearing at her. The woman called me stupid and she was yelling trying to instigate me into a verbal argument. I mentioned to her that we could take this up with management because it derogatory to call a fellow worker words such as stupid. She muttered under breath that she was full time and I was just an uneducated agency worker. This is same woman who questioned me about education and what I was doing working at a company like this if I was so educated. My answer was I am doing same thing as you trying to pay bills.

Another incident involved a female security guard-a middle aged woman. She was always inquiring about going out for drinks but I wanted no friendship with this person. This lady has a Jekyll & Hyde character. Every time she would see me talking to female she would contact the supervisor. Another time she saw me taking to a fellow worker about working over-time. She interrupts conversation—explaining to us that none of supervisors told her of overtime. She tells us that she cannot work late because the supervisors never told her. I saw her at 4.30pm and I said to her, “I thought you were going home at 3.30.she says nothing to me.

….The next day I get complaint from Supervisor about fraternizing talking to the women-all this bullshit. What you talking about he is like you know what talking about! I am like clueless–finally, he says you were trying to chat up security guard trying to find out when she finishes work to ask her out. His statement his you are always trying to pick her up. He says they have a case against you she is building a case against you I should watch myself because what I don’t realize is that I am treading on borrowed time. .

Other annoying question is where you get the money to have a different outfit every day. !? What were you doing in Japan? I don’t believe you have a university degree? How could you have a degree I went to university?

The last two months of working at this company I would explain to female workers that it be best to not have long conversations because of the politics inside the company. If you liked someone and they were single you might exchange numbers, but in my situation I knew any friendships I developed with a female co-worker at work especially if she was very attractive this meant a termination of my contract. I fondly remember one particular lady a shared a friendship where we discussed education, arranged marriages and grants for universities. There was so much I wanted discuss about women’s rights, sexual harassment at work, importance of higher education and implementing labour laws urging women to obtain licenses fork trucks and other factory equipment’s. This would give them an equal raise to male counterparts.

I realized some people were saying bad things about me-I realize I was over qualified for this job, I realized I got the crappy jobs on occasions-however; everyone is supposed to be equal-we- are a team. I had other friendship women but these relationships were not of a sexual manner. I would like to discuss these however; I find it hard because when people at this company read this article they may be able to identify whom I am outlining in this journal.

I would mention the Christmas party-the very next day everyone is like oh you had the most we had a few people dancing we were just dancing. I am happy that I don’t work at VF Solutions-however, I am not happy at being released without any warning. The day before you get compliments that you are such a good worker. The supervisor said if I would like to stay of day shift because of school that would be good. I tell agency of situation they say it’s fine and the following day I have been terminated for no reason.

I never got a reason why I was fired, however, what shocked me the most was an anonymous letter I received stating that I knew you were older-you are scum, you need to be kept away from the females-you pervert.

The environment at this company is not conducive for men and women to work together. I was told that a male worker was fired for fondling women. One worker at Halloween party told another worker that he could not understand why I didn’t grab the girls ass and lift her skirt- it is obvious the bitch wanted me.” Those were his exact words. Some of these guys one or two in particular no name mentioned they would follow a girl to washroom. Pretend to use guys washroom and wait for female to leave girls washroom. I witnessed this- the person told me he wanted to get a look at her beautiful ass…

It was strange place however, if you were allowed to do job and you left them alone the job was fine. A majority of men and women at this company I realized they never had much people skills when it came to expressions, relating to opposite sex and treating people with respect. My personality was different I helped older women heavy boxes by loading the lines. This gesture of kindness at work has no connection to sexual favour somewhere down the line. The other day a woman nearing 70 asked me for a ride to the mall after work-the next day I am being quizzed on how the date went. What these people don’t realize is everyone knows who the good and bad people are at this company. Moreover, what people end up doing it comes back to haunt them. This journal could have been more graphic-however, I am here to report an incident and file a grievance with the labour board.

I realize a company can fire someone anytime they want-however, they should be given notice and a reason. I was not given any notice. I was lead to believe they were busy for the next 10 months or more. I would like a better job but this was my only gig to pay O SAP, rent, food, car payments and social activities. A citizen right is to seek a severance package due to wrongful dismissal and not being properly informed.

You cannot assure someone that they have a job-then a day later fire them. I did so much for this company I worked overtime, I was never late and any job they gave me I did not complain. So someone has decided my faith because they consider me an embarrassment because of my impeccable behaviour towards my fellow female workers. I have never been comfortable using derogatory words towards females; nonetheless, this was encountered on numerous occasions. I understand the agency siding with company because I am one person. The company pays a substantial amount to have agency provide them with workers. The depression era the 30s and the Steinbeck novel a Grapes of Wrath, Go further back to slavery days or a period when Europeans came here as bond servants to elite Europeans. I am happy that I obtained my university degree because these form of education as given me the confidence to speak up for my rights and the rights of individuals who cannot speak for themselves. Below is an outline of how an investigation of wrongful dismissal or harassment should be handled.

Going back to university as a mature student was one of the best things that happened. I realize it is not the degree or piece of paper the institute offers to you upon graduation. The real lesson in life is learned at the library, walking through halls going to classes, the dances and pep rallies. A college or university degree not only prepares you for the labour force-it prepares for marriage raising a family and life and death. My years at university gave me the opportunity to understand that everyone should be treated as an equal whether you are straight, gay, white or black or a male or female. No one is guaranteed a career opportunity upon graduation-however, the experiences of a post-secondary education tell you that should not give up-you should make the best of everything. That was the attitude I had every day. I chose to ignore the negative and do my work. Unfortunately, I have been fired and this university experiences tells me my rights as a worker as a citizen has been threatened. I say thank you for allowing me to upon myself to you all at this job and then have you stab me in the back accusing me of some of the most important themes I still believe we as Canadians should address. The topic of sexual harassment, rights of agency or contract workers and the rights of individuals to express themselves freely without demeaning fellow workers because of sex, ethnicity, age or disability.

Investigating Violations
In general, employees must try to contact their employer or former employer (or the client of a temporary help agency, if applicable) about the employment standards right(s) they believe have been violated and the amount of money they are owed before a claim can be investigated. Issues can often be resolved quickly with this approach.
In some situations, an employee may not be required to contact his or her employer before filing a claim submission (e.g. If the employee is afraid to contact the employer or he or she is a young employee). Employees have an opportunity to tell the ministry on the Claim Form why they did not contact their employer, or that they have already contacted their employer. If the employee contacted the employer but the issue was not resolved, the employee does not have to contact his or her employer again.
If the parties are unable to resolve the issue on their own, and if the employee has provided all the required information on the Claim Form, the matter is assigned to an employment standards officer for investigation.
When a claim is assigned for investigation, the employment standards officer may conduct his or her investigation by telephone, through written correspondence, by visiting the employer’s premises or by requiring the employee and/or the employer to attend a meeting. During an investigation, both parties have the opportunity to present the facts and arguments they believe are important to their case. If a claim has been submitted against the client of a temporary help agency regarding a possible reprisal, employment standards officers have the same powers of investigation with respect to the client as they do for an employer. The officer will make a decision based on the best available evidence which may include employer records, client records, employee records, and interviews.
An employee and employer can enter into a settlement to resolve their dispute. A settlement is an agreement made between an employee and his or her employer that will resolve the claim. The ESA allows this option in certain circumstances after a claim has been filed. If a settlement is made, the employee and his or her employer will have to inform the ministry in writing of the terms of the settlement. If the employee and employer do what they agreed to under the settlement, the claim is considered to be withdrawn and the investigation will come to an end. Claimants and employers are not required to resolve a claim by entering into a settlement.
There are strict time frames that apply to requests for documents from employees, employers and clients of temporary help agencies. If the information is not provided in a timely manner, a decision may be made without consideration of those materials. Similarly, if both parties were required to attend a meeting but one did not show up, the employment standards officer may make a decision based solely on the evidence provided to the officer before the meeting and the evidence provided by the other party at the meeting.
After investigating a claim, the employment standards officer makes a decision about whether the employer has or has not followed the ESA. If the officer finds that the employer has complied with the ESA:
• The employee is notified in writing of this decision, and can apply for a review within 30 days.
If the officer finds that the employer has not complied with the ESA:
• The employer may resolve the issue by voluntarily complying with the officer’s decision (i.e., by paying money that is owing to an employee or employees, or by adopting new, or changing existing, workplace practices).
• Officers can also require an employer to post a notice containing specific information about administration or enforcement of the ESA, and/or a copy of the report or part of the report with the officer’s findings.
Enforcement
If an employer is unwilling or unable to comply with an employment standards officer’s decision, the officer can issue an order to pay wages to an employee or employees, a compliance order, a ticket, a notice of contravention or, for certain violations, an order to reinstate and/or compensate an employee.
These orders, tickets, and notice of contraventions are not mutually exclusive, and an officer can issue one or more of these orders and/or a notice of contravention in the course of an investigation or inspection.
In the case of a reprisal by a client of a temporary help agency, an officer can issue an order to reinstate in the assignment and/or compensate an employee for any loss incurred as a result of the contravention.
Employers and clients of temporary help agencies have the right to appeal an officer’s order or a notice of contravention by making an application for review to the Ontario Labour Relations Board. The employer also has a number of options if an officer has issued a ticket.
Employees who have filed a claim or for whom an order has been issued have the right to appeal an order to pay wages or an order for compensation/reinstatement issued against their employer or against a client of a temporary help agency.
Order to Pay Wages
An order to pay wages is issued and served on an employer for wages owed to an employee or employees when an employer has refused or is unable to pay money found owing (accept when there has been a bankruptcy).
The employer must comply with the order according to its terms or appeal the order within 30 days of the date the order is served. The order also requires the employer to pay an administrative cost of 10 per cent of the money order, or $100.00, whichever is greater.
An order to pay wages cannot exceed $10,000.00 in wages for each employee covered by the order.
Example of an Order for wages for more than one employee
Lisa was working as graphic artist at a new company with five employees. She worked for four months and then quit her job. Lisa had worked a lot of overtime in the four months she was employed but was not paid overtime pay. She had spoken to her employer about being paid overtime but was refused.
Shortly after quitting her job, Lisa filed a claim with the ministry for her overtime pay. Her file was assigned to an employment standards officer for investigation.
The officer determined that Lisa and the other four employees were entitled to overtime pay going back five months, to the date the company started operation. Specifically, the officer found that the employer owed the five employees $15,647.87 in overtime plus $625.91 vacation pay on the overtime, for a total of $16,273.78. No single employee was owed more than $10,000.00.
The employer refused to voluntarily pay the money the officer found owing. The officer issued and served an order to pay wages on the employer on behalf of Lisa and the other employees. The amount of the order was $16,273.78, plus a 10 per cent administrative fee of $1,627.38. Lisa and the other employees were notified in writing of the officer’s findings.
Compliance Order
An officer can issue a compliance order if the officer finds that the employer has contravened the ESA. The officer can order an employer or other person to stop contravening a provision and to take certain steps in order to comply with a provision. The order may also specify a date by which the employer or other person must comply with the order. These orders do not require payment of wages or compensation.
Example of Compliance Order in addition to an Order to Pay Wages
While investigating Lisa’s claim for overtime pay, the employment standards officer discovered the employer was not giving the five employees proper meal breaks of at least 30 minutes after every five consecutive hours of work. Also, the employer had not posted the “What You Should Know About the Ontario Employment Standards Act” poster as required under the ESA.
In addition to the order to pay wages, the officer issued and served on the employer a compliance order directing it to: comply with the overtime provisions of the ESA; ensure that employees would receive their proper meal breaks; post the material required by the ESA; and post a copy of the compliance order in a conspicuous place at the workplace for six months.
Tickets
Generally, tickets will be issued for less serious ESA violations, those that do not raise complex factual or legal issues. Tickets will be issued to the employer responsible for the offence. Ticket able offences fall into three categories:
• Administrative and enforcement offences (e.g. failure to retain records)
• Contraventions of wage-based employment standards (e.g. failure to pay overtime pay)
• Contraventions of non-wage-based employment standards (e.g. requiring employees to work hours in excess of daily or weekly limits)
Tickets carry set fines of $295, with a victim fine surcharge added to each set fine plus court costs. If issued a ticket, an employer can choose to pay the fine or appear in a provincial court to dispute the offence.
Notice of Contravention
Employment standards officers have the power to issue notices of contravention with prescribed penalties when they believe someone has contravened a provision of the ESA. The penalty amount (payable to the “Minister of Finance”) must be paid within 30 days of the date the notice was issued or the notice must be appealed within 30 days of the date it was served.
If an employer has contravened the mandatory posting requirements of the ESA or has failed to keep proper payroll records or to keep these records readily available for inspection by an employment standards officer, an officer can serve a notice of contravention with the following prescribed penalties:
• $250.00 for a first contravention;
• $500.00 for a second contravention in a three-year period;
• $1,000.00 for a third contravention in a three-year period.
If an employer is found in contravention of any other provision of the ESA, the penalties prescribed are:
• $250.00 for a first contravention multiplied by the number of employees affected;
• $500.00 for a second contravention in a three-year period multiplied by the number of employees affected;
• $1,000.00 for a third contravention in a three-year period multiplied by the number of employees affected.
Example of when there are further violations
Six weeks after serving the compliance order on Lisa’s former employer, the officer visited the employer and conducted a further audit. The officer found that the employer was now paying overtime to all employees and had posted a copy of the compliance order. However, the employer had not posted a copy of the ESA poster and had not ensured that its five employees received proper meal breaks.
As a result, the officer issued and served a notice of contravention on the employer. This set out the officer’s belief that the employer had failed to make the required posting ($250.00 penalty) and had failed to give proper meal breaks to five employees (five times the $250.00 penalty = $1,250.00), for a total of $1,500.00 in penalties.
The officer also informed the employer that further violations could result in future notices of contravention being issued and/or prosecution by the Ministry.
Order to Compensate and/or Reinstate
In the case of some violations, an officer can make an order requiring an employer to reinstate or compensate an employee–or both. These violations include rights related to:
• pregnancy, parental, personal emergency leave, declared emergency leave, reservist leave, and family medical leave;
• lie detectors;
• the right to refuse Sunday work for retail workers;
• an employee being free from any form of reprisal by an employer and/or by a client of a temporary help agency for exercising his or her rights under the ESA.
Unlike an order to pay wages, an order to pay compensation is not limited to a maximum of $10,000.00. The officer can order compensation for any loss the employee may have incurred.
Review (Appeal) of an officer’s decision
Reviews are conducted by the Ontario Labour Relations Board, an independent, quasi-judicial tribunal. If employees, employers or clients of temporary help agencies are not satisfied with an officer’s decision, they may have the right to apply for a review (appeal). They must complete an Application for Review, setting out the facts and reasons for the application within 30 days of service of the order or notice
To obtain an Application for Review form contact:
Ontario Labour Relations Board
505 University Avenue, 2nd Floor
Toronto, ON M5G 2P1
Tel: 416-326-7500
Fax: 416-326-7531
http://www.olrb.gov.on.ca/english/homepage.htm
The Application for Review form must be submitted to:
The Registrar
Ontario Labour Relations Board
505 University Avenue, 2nd Floor
Toronto, ON M5G 2P1
Employee Appeals
An employee who files a claim can appeal an officer’s refusal to issue an Order to Pay Wages, an Order to Pay Fees, an Order to Pay Compensation and/or Reinstate or a Compliance Order.
An employee for whom an order has been issued (whether or not he or she filed a claim) can appeal the amount of an officer’s Order to Pay Wages or an officer’s Order to Pay Compensation and/or Reinstate.
For employees, the Application for Review must be submitted within 30 days of the date the letter advising the employee that an order has been issued against the employer or client of a temporary help agency, or advising that the officer has refused to issue an order has been served on the employee.
Employer Appeals
For employers and clients of temporary help agencies, the Application for Review must be submitted within 30 days of the date of being served with an order or notice.
Employers can apply for a review of an Order to Pay Wages (the employer must pay the full amount of the order plus the administrative fees to the Director of Employment Standards in trust); an Order to Pay Fees (the employer must pay the full amount of the order plus the administrative costs to the Director of Employment Standards in trust); a Compliance Order (these orders do not require payment of wages or compensation); a Notice of Contravention (the employer does not have to pay the amount of the penalty before the review hearing can proceed)
In addition, employers and clients of temporary help agencies can apply for a review of an Order to Pay Compensation and/or Reinstate an employee. The employer or the client of a temporary help agency must pay the lesser of the amount owing under the order up to a maximum of $10,000 to the Director of Employment Standards in trust.
Employers who receive a ticket must, within 15 days of the receipt of the ticket, choose one of the following:
• Plead guilty by paying the amount owing on the ticket
• Plead guilty with an explanation to a Justice of the Peace. The employer must bring their ticket to the Provincial Offences Court to provide explanations as to why the amount or time of payment of the ticket should be reduced.
• Plead not guilty and fill out the notice of intention to appear in court. The court will schedule a trial.
An employer who does not elect one of the above options within 15 days of receiving the ticket, will be deemed not to dispute the charge.
Payments
Payments must be made to the “Director of Employment Standards in trust” within 30 days of service of the order. It should be made by cheque, money order or letter of credit. A letter of credit must be in a form that is acceptable to the Director of Employment Standards. That is, it must:
• contain no conditions;
• expire no less than one year from the date it is issued;
• be prepared by a major Canadian bank;
• be for an amount that is five per cent greater than the order, to allow for accrued interest; and
• name the Director of Employment Standards as the beneficiary.
The payment should be forwarded to:
Director of Employment Standards
Ministry of Labour
400 University Avenue
9th Floor
Toronto, ON M7A 1T7
The ministry will issue a proof of payment to the employer or client of a temporary help agency, and will hold the money in trust.
The Review Process
When a request for a review is received, an officer of the Ontario Labour Relations Board (the “Board”) will sometimes schedule a mediation meeting with the parties. No mediation meeting takes place in the case of a notice of contravention. If the matter is settled at this meeting, the minutes of the settlement are drawn up and signed off by the parties.
If the matter is not settled, or there has not been an attempt at mediation, a hearing is scheduled. The parties have a right to appear at the hearing, present their information in full and explain why they think the employment standards officer was right or wrong.
The Board can amend, overturn or uphold the employment standards officer’s order or notice of contravention. The Board can also issue a new order.
After reviewing an employment standards officer’s refusal to issue an order, the Board may issue an order or uphold the officer’s refusal.
The Board’s decisions are final and binding. Although an employee, employer, or client of a temporary help agency may apply to Divisional Court for a Judicial Review, usually the court will not interfere with a decision as long as it meets a test of “reasonableness.”
Collections
If an employer or client of a temporary help agency does not apply for a review within 30 days of the date the order or Notice of Contravention was served, the order or notice is final and binding. If the employer or client of a temporary help agency has not paid the required amount, the Director of Employment Standards forwards the order or notice to a private collection agency.
The Director may authorize the collection agency to collect a reasonable fee and/or costs from the employer or client of a temporary help agency. Once an order or notice is sent to a collection agency the employer or client of a temporary help agency must pay the collection agency fees and the Ministry’s administrative costs.
Prosecution
An employer or other person can be prosecuted and ordered to pay a fine and/or imprisoned for contravening the ESA. A court may also order the employer to take whatever action is necessary to remedy the violation, including paying wages and compensating and/or reinstating an employee.
It is an offence for an employer or other person to:
• contravene the ESA or regulations
• make or keep false records or other documents that must be kept under the ESA
• provide false or misleading information under the ESA
• fail to comply with an order, direction or other requirement under the ESA or regulations.
Offences may be prosecuted and, if there is a conviction, the offender may be subject to fines or imprisonment. The Ministry of Labour may choose to prosecute an employer or any other person who is in contravention of the ESA. Individuals, if convicted of an offence, can be fined up to $50,000, imprisoned for up to 12 months, or both.
A corporation can be fined up to $100,000 for a first conviction. If the corporation has already been convicted of an offence under the ESA, it can be fined up to $250,000 for a second conviction. For a third or subsequent conviction, the corporation can be fined up to $500,000.
Courtney Duncan

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