An employment law blog for employers and employees.
Published by Sean Bawden of Kelly Santini LLP.
T. 613.238.6321 | sbawden@kellysantini.com | www.kellysantini.com

Thursday, 4 December 2014

The Rita Hayworthing of Ontario's Workplaces

For those who feel like their workplaces are already too much like a prison, May 20, 2015, will not be a happy day. For on that day the workplaces of Ontario will resemble Andy Dufresne’s prison cell at the fictitious Shawshank State Prison.

For those who have not seen the movie The Shawshank Redemption my first question is “how?” But, if you have not, and sorry to spoil it for you, the movie focuses on Andy Dufresne, a innocent man sentenced to life in prison at Shawshank State Prison, from which he eventually escapes by tunnelling through the prison’s walls. Dufresne conceals his tunnel with a large poster of Rita Hayworth.

Unfortunately, the poster that employers must distribute to all employees as of May 20, 2015, is not of Rita Hayworth; it is of the salient provisions of Ontario’s Employment Standards Act, 2000.

Changes To The Law

As mentioned in an earlier post, on November 20, 2014, the Stronger Workplaces for a Stronger Economy Act, 2014, S.O. 2014, c. 10, received royal assent ushering in a number of changes to Ontario’s employment laws. One of the changes concerns the requirement on employers in Ontario to post and keep posted in at least one conspicuous place in every workplace of the employer a copy of the most recent poster published by the Minister of Labour.

As the law currently stands, employers are only required to:

  • Post and keep posted in at least one conspicuous place in every workplace of the employer where it is likely to come to the attention of employees in that workplace a copy of the most recent poster published by the Minister under this section; and
  • If the majority language of a workplace of an employer is a language other than English, the employer shall make enquiries as to whether the Minister has prepared a translation of the poster into that language, and if the Minister has done so, the employer shall post and keep posted a copy of the translation next to the copy of the poster.

However, as of May 20, 2015, the date on which the changes to the Employment Standards Act, 2000 come into effect pursuant to the Stronger Workplaces for a Stronger Economy Act, 2014 each and every employer in Ontario, subject to the provisions of the Employment Standards Act, 2000 will now be required to do the following:

  • Provide each of his or her employees with a copy of the most recent poster published by the Minister under this section;
  • If an employee requests a translation of the poster into a language other than English, the employer shall make enquiries as to whether the Minister has prepared a translation of the poster into that language, and if the Minister has done so, the employer shall provide the employee with a copy of the translation;
  • Provide an employee with a copy of the poster within 30 days of the day the employee becomes an employee of the employer; and
  • If an employer has one or more employees on the day section 1 of Schedule 2 to the Stronger Workplaces for a Stronger Economy Act, 2014 comes into force, the employer shall provide his or her employees with a copy of the poster within 30 days of that day.

As Oprah Winfrey might say, “You get a poster, you get a poster, everybody gets a poster!” And, note the first of those requirements: not only does everybody get a poster on May 20, 2015, everybody gets a poster every time the poster is updated.

So What Does This Change Mean?

Here is my concern. Here is what the poster says:

The Employment Standards Act, 2000, known as the ESA, is a law that sets minimum standards for workplaces in Ontario. If you work in Ontario, you are probably protected by the ESA. It does not cover employees in federal jurisdiction and persons in a few other special categories. There are exceptions and special rules for some employees and not all employees qualify for all ESA rules.

Here is what the poster should say:

The Employment Standards Act, 2000, known as the ESA, is a law that sets minimum standards for workplaces in Ontario. If you work in Ontario, you are probably protected by the ESA. It does not cover employees in federal jurisdiction and persons in a few other special categories. There are exceptions and special rules for some employees and not all employees qualify for all ESA rules. You may be entitled to more than the minimum standards set out in the ESA either pursuant to your employment contract or the common law. This poster and the ESA are not the exclusive source of law governing employment in Ontario.

See the difference?

As was canvassed by this blog in the post The High Price of Free Employment Law Advice the ESA is only the starting point of an employee’s rights and an employer’s responsibilities at Ontario law. Far too many employers and employees have gotten ‘burned’ by listening to the information provided by the Ministry of Labour. I cannot tell you how many times I have had an employer advise me that they do not understand a claim for wrongful dismissal because they did ‘exactly what the Labour Board told them to do.’

So who will this change benefit? Ironically, probably employers. Most people are generally unaware of the full extent of their legal rights. As the above-referenced post demonstrates, most people believe that they are entitled to no more severance than what is provided for in the ESA; however, as this blog explains on the page What is Wrongful Dismissal? the same is simply not true. By providing each and every employee in Ontario with a poster, prepared by the Ministry and Labour, this misconception will likely be expanded and reinforced. The result is that more employees will likely be prepared to accept no more than the minimum amounts prescribed by the ESA.

Takeaways for Employers with Labour Pains

The takeaway for employers is that as of May 20, 2015, you are going to have to hand out a copy of the Ministry of Labour’s poster to each and every employee. If the employee asks for that poster to be translated, you will have to ask the Ministry if a translation exists, and if it does, provide a copy of the translated poster to the employee.

Takeaways for Employees with Labour Pains

The crucial takeaway for employees is to not be like Shawshank Prison Warden Samuel Norton; look past the poster!

If you are concerned about your rights at work, start with the poster and the minimum standards set out in the ESA, but then consider what else might be behind that poster. For example, most employees will be entitled to far, far more notice of termination than the minimum amounts prescribed by the ESA.

If you have been let go from your job, or otherwise believe that your rights have been violated, you need to speak with an experienced employment lawyer. The professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP would be happy to be of service to you.

Contact Me

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260. You may also use the contact box at the top of this page.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

Sean Bawden, publisher of Labour Pains, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He is also a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.



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