My employer’s paycheques bounce often – every two months or so. It’s to the point that my bank is now putting a five-day hold on my paycheques before they release the funds. I can’t pay my bills on time and support myself with this hold period. What can I do to get my employer to pay me on time?
THE FIRST ANSWER
Amiri Dear, lawyer, Hummingbird Lawyers LLP, Toronto
An employer is required to pay an employee in accordance with the terms stated in their contract. An employer cannot unilaterally deviate from that. An employee must be paid, and must be paid on time, for the services rendered. Failure to pay an employee is a breach of contract for which they are entitled to compensation by law. There are a number of ways in which an employee can compel payment.
The quickest and most economical way is by making a complaint to the employment standards office of your provincial ministry of labour’s employment standards office. It will investigate the circumstances surrounding the failure to pay wages and, if necessary, make an order compelling the employer to do so.
Alternatively, the employee can bring a claim against the employer for the unpaid wages. This will require the employee to bring a civil claim in either the Superior Court of Justice or your provincial small claims courts, depending on the sums owed. In Ontario, should the outstanding payments be less than $35,000, the employee should bring the claim within the jurisdiction of the small claims court.
This second option takes longer and is less economical, as there are associated fees when bringing a court action, and there is specific procedure and timelines to which to adhere.
THE SECOND ANSWER
Charles Osuji and Lydia Iboko, Osuji & Smith Lawyers, Calgary
Late payments by your employer are often a sign of financial distress. It is illegal for an employer to bounce a cheque unless it was an honest mistake. Your employer has a responsibility to pay you promptly for your service.
In Alberta, the Employment Standards Code defines employees’ rights when their employer violates their contract. An employment contract, whether written or verbal, defines the employee-employer relationship. It specifies when, at what rate and how frequently an employee should be paid. The Canadian Banking Law and Employment Law requires that an employer – and anyone else who writes a cheque – are required to have enough funds in the bank to cover the cheque. Canadian Banking Law often requires that a payor have sufficient funds to cover the paycheques for a certain amount of time after they are issued.
To ensure your employer pays on time, you should send your employer a written request for payment that includes the date and time of the work you did. If you decide to sue your employer, this material will be essential in your claim for unpaid wages. If the written request fails to yield results, you can proceed to file an employment standards complaint.
You can file a complaint if an employer is not meeting the minimum employment standards. This process is cheaper and faster than litigation.
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