A moment that most Mohawk College students look forward to is the moment where they are no longer a student because they’ve entered the workforce. However, there is some crucial information about employment that students should be aware of beforehand. John Nikolaou, a Legal Assistant at the MSA, has provided the MSA with some valuable information for students regarding employment.
Here’s what he had to say.
What is the Employment Standards Act?
The Employment Standards Act is the main act that governs employment in Ontario.
The act applies to employees and employers who carry on business in Ontario; provided the work is performed in Ontario, and any other work outside of Ontario that is a continuation of work performed in Ontario.
The Employment Standards Act does not apply to:
· Federal employees
· An employee of an embassy or consulate
· Persons who perform work authorized by school programs
· A participant in Community participation
· Persons who perform work under an order or sentence of a court
· Persons working in a simulated job
· A holder of political, religious or judicial office
· A member of a quasi-judicial tribunal
· A holder of elected office in an organization, including a trade union
· A police officer, except in some instances
The Act, which is commonly known as ESA, is one of the main statutes that governs employment law. Besides this, however, the other statutes – common law or judge-made laws also govern the laws on employment. In some instances, the common law will apply to an employee’s employment this typically occurs in the absence of an employment contract. But regardless of whether the employee has an employment contract or not, they are entitled to the same minimum rights and entitlements.
Note: Do you have a job interview coming up? Find the perfect outfit through the MSA Career Closet.
Employees and Employment Rights
Right to refuse unsafe work
Every employee has the right to refuse unsafe work if:
. It is not a reasonable duty for you to carry out in your job
. You immediately notify your supervisor of your refusal and that you provide the reason why.
Equal pay for equal work
In Ontario, employees are entitled to be paid the same as other employees with comparable qualifications and work prominence.
Employees are entitled to vacation days or pay instead of time off. It is the employee’s choice of how their vacation is compensated. However, an employee cannot either waive their right to vacation time off or pay in instead of vacation days. An employee is entitled to two weeks of vacation time for less than five years of employment, and three weeks for a work period of more than five years.
In the case of pay instead of time off the employee will be paid four percent of their total wages for a period of employment of fewer than five years, or six percent for a work period for more than five years.
If the employee works on a stat day, they are entitled to be paid time and a half for each hour worked.
Leaves of absence
A leave of absence is when an employee is unable to work for a specific reason (sick days, bereavement leave, pregnancy leave, parental leave, etc.). An employer may request reasonable evidence to prove you meet the requirements to take a leave of absence.
Employees have the right to be paid for all work they do and have the right to be paid on a recurring pay period. No employee can threaten or take an employee’s wage and or withhold them.
An employer can only deduct from an employee’s wage in the case of taxes, a court order, or an employee’s consent to do so.
Employees are guaranteed to make at least the minimum wage. The minimum wage will vary depending on the employment, however, most employees qualify for a minimum wage of $14.00 per hour.
Overtime pay occurs when an employee has worked more than 44 hours in a week. When this happens, employees are entitled to be paid time and a half for every hour over 44.
No employer can threaten to take away or take away an employee’s tips or any other gratuity. Although, they can collect all tips and gratuities to evenly distribute them to other employees who would be entitled to them.
Employees are entitled to a half-hour unpaid break that is scheduled so an employee is not required to work more than five hours consecutively. Employers cannot force an employee to work more than eight hours a day, or if the employer establishes a regular workday or 48 hours in a week.
Employers must give at least eight hours between shifts off. Also, there must be 11 consecutive hours a day free from work.
An employee who works for a retail employer may refuse work on a Sunday as well as a public holiday. Notice must be given in advance of the day the employee refuses to work. If an employee agrees to work on a holiday or Sunday but ultimately decides not to, the employee must give notice no later than 48 hours before the commencement of the day in question.
Termination of Employment
An employee who wishes to end their employment may do so by notifying their employer when their last day of employment will be. Notice will vary depending on your role - for positions that are harder to fill more notice should be given.
Without cause termination
Without cause, termination is the termination of the employee’s employment when the employee has not given any cause to the employer. In the event the foregoing occurs, you may be entitled to notice of termination, pay instead of notice, severance pay and the continuation of benefits, according to the current ESA (December 10, 2019).
Notice of termination and pay in lieu of notice
In most cases when an employee is terminated without cause, they are entitled to notice or pay in lieu of. Notice of termination is when your employer notifies you that on a specific future date your employment will be finished with the employer. During that period, you will be paid and receive the same entitlements and benefits of employment that you would normally receive.
Pay in lieu (instead) of notice is when you are paid in instead of being notified. In essence, your employer will cease your employment effective immediately and pay you for the time you would have worked if notified that day. Your benefits will also continue throughout what would have been your noticed period.
Severance occurs when:
. The employer dismisses the employee or otherwise refuses or is unable to continue employing the employee
. The employer constructively dismisses the employee and the employee resigns from his or her employment in response within a reasonable period
. The employer lays the employee off for 35 weeks or more in any period of 52 consecutive weeks
. The employer lays the employee off because of a permanent discontinuance of all of the employer’s business at an establishment, or
. The employer gives the employee notice of termination in accordance with section 57 or 58, the employee gives the employer written notice at least two weeks before resigning and the employee’s notice of resignation is to take effect during the statutory notice period.
Employees who have their employment severed may be entitled to severance pay. Severance pay is a week(s) pay when an employee’s employment is severed.
Just Cause termination
Just Cause termination occurs when the employee has given cause to the employer for termination. This can occur when the employee is insubordinate, steals from the employer and or acts not in accordance with the employer's values (this is not a complete and comprehensive list of the reasons for a just cause termination).
Depending on the reason for the cause termination, an employee may be entitled to the same entitlements as an employee who is terminated without cause.
Employers or anyone acting on behalf of the employer cannot intimidate, dismiss or otherwise penalize an employee or threaten to do so.
Poisoned work environment
A workplace is considered poisonous when discrimination or harassment on a prohibited ground becomes a part of a person’s workplace, becoming a term or condition of employment. Every employee is protected against this or any other form of harassment in the workplace.
If any part of the ESA is not followed, an employee may submit a complaint with the Ministry of Labour. In most cases, initiating a compliant waives your right to pursue litigation for the same matter the complaint is based on.
The Workplace Safety Insurance Board helps injured workers get back into the workforce by providing financial assistance concerning injuries sustained in the workplace, and getting employees back to work as fast and safely as possible.
The WSIB is available to employees who work in industries listed in schedule 1 and 2 of O. Reg. 175/98: GENERAL. WSIB is a no-fault system and once an injured employee initiates the WSIB process, the employee waives their right to take legal action against the employer.
Types of compensation that may be obtained via WSIB are:
. Loss of earnings
. Benefit for non-economic loss
. Loss of retirement income benefit
. Benefit for future economic loss
. Health care benefits
. Benefits for seriously injured workers
. Survivor compensation
Are you ready for the workforce, Mohawk?
Note: The information in this blog post is for information purposes only. It is not and should not be taken as legal advice.
However, the MSA does offer free legal counselling to any Mohawk student who may need it. Students can book appointments between 1:30 and 6:30 p.m. on Thursdays to speak with Bill Reid. Reid is a member of the Law Society of Upper Canada and can counsel students on a range of topics including landlord/tenant circumstances, immigration questions, and more.