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The Question

I work for a nursing home and I am not being paid. I have been employed for about six years and I’m not sure what to do. I called the Ministry of Labour, but I am a bit nervous to sign the forms that they suggested because then the nursing home pay office will know that it was me who complained. It has been several weeks now. The pay office says that I am not on the new pay list, but I have worked there for years. I am not the only one not being paid. Should we ask for emergency pay?

The First Answer

Balraj Dosanjh, labour and employment lawyer, Cavalluzzo LLP, Toronto

Employers in Ontario are required to establish a regular pay period and a regular payday for employees under the Employment Standards Act, which sets out the minimum requirements that employers covered by the act must follow. The Employment Standards Act also obliges an employer to provide a wage statement before the employee’s payday, setting out information such as the pay period, wage range, amount and purpose of each deduction and net wages. It is important to note that there are some groups of employees who are exempted from the application of certain provisions of the Employment Standards Act. Also, the rules requiring a regular pay period and payday do not necessarily apply to bonuses and commissions.

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As you know, you are able to file a claim with the Ministry of Labour to enforce the employer’s compliance with the Employment Standards Act. You may also have recourse in court for breach of contract based on a written or oral employment contract. Practically speaking, filing a claim with the Ministry of Labour is probably your best recourse for enforcing your right to wages. Unfortunately, whether you file a claim with the Ministry of Labour or sue in court for payment of wages, the employer will eventually learn who the complainant is either through the Ministry of Labour’s investigation process or the court proceeding, which is presumptively an open and public process.

However, you should know that the Employment Standards Act includes provisions to protect employees from being subject to reprisal. Specifically, an employer is prohibited from intimidating, dismissing or otherwise penalizing an employee or threatening to do so just because the employee asked the employer to comply with the act, filed a complaint with the ministry or otherwise attempted to exercise their rights under the act. Importantly, employment standards officers have the power to order compensation and/or reinstatement if an employer is found to be in breach of the reprisal provisions.

The Second Answer

Matt Lalande, founder, Lalande Personal Injury Lawyers, Hamilton

I will assume that you are a non-unionized employee. Sometimes, collective agreements call for emergency pay in certain situations. In Ontario, the Employment Standards Act does not reference emergency pay. The only emergency pay that was available was two paid days if an employee took a personal emergency leave. This law has since been repealed. What is the new pay list about? Could you not being on the new pay list perhaps be an administrative error? You should speak to your employer about this.

You have not been formally terminated because you have not been provided with written notice of termination, termination pay or a combination of both. Did your employer intend to temporarily lay you off? Temporary layoff is when an employer cuts back or stops an employee’s work without ending their employment. You should speak to your employer about this as well.

The law is clear that you must be paid within a regular pay period if you are working. Employers must establish a regular pay period on a regular payday for all employees. Your employer must pay all of your wages earned within the pay period, other than vacation pay that is accruing, no later than your regular payday for that period. You can continue with your complaint with the Ministry of Labour. Go online and find a form that you can fill out to file a claim for unpaid wages, termination pay and reprisal. Reprisal prohibits employers to intimidate, dismiss or otherwise penalize an employee or threaten to do so if you file a complaint with the ministry.

You can also speak with an employment lawyer. If you have not been paid on time, or at all, the employer could have constructively dismissed you, meaning that you were terminated without anyone letting you know properly.

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