Being terminated from a job is something that can turn a person’s world upside down. Questions immediately arise, such as why were you terminated? Was there another reason? Are you getting a fair offer? What do you do next? Fortunately, we have numerous pieces of legislation that seek to protect both employees and employers in the realm of employment, such as the Employment Standards Act, 2000, the Ontario Human Rights Code, and even the Workplace Safety and Insurance Act, just to highlight a few.
Figuring out what your next steps are can be overwhelming, especially considering the various laws we have which can sometimes conflict with one another. This is why it is important to be well-informed as to what venue would be most suitable for pursuing your particular issue. Here are some of the options outside of a civil claim through the court for provincially-regulated employment matters.
Human Rights Tribunal of Ontario
Generally, discrimination in the workplace based on a protected ground of the Ontario Human Rights Code can be combined with a wrongful dismissal claim and pursued in the civil courts. However, what if you’re still employed and want to continue working there? Or maybe your employer provided a reasonable amount of notice upon termination? There may be certain situations where it would make more sense both financially and factually to pursue your claim in the tribunal, particularly where there is no other claim to piggyback onto.
In the employment context, the Ontario Human Rights Code protects employees from discrimination in the workplace based on 16 enumerated grounds: race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offence, marital status, family status or disability. If an employee’s concern is that they are being treated differently based on one or more of these protected grounds, then pursuing a remedy through the Human Rights Tribunal may be the next step.
Something to keep in mind is that when an employee initiates a claim under the HRTO, they have the burden of proof to show on a balance of probabilities that 1. They have a characteristic protected from discrimination 2. They experienced an adverse impact 3. The protected characteristic was a factor in the adverse impact. Once this is established the burden then shifts to the respondent to justify the conduct within the exemptions available, like a bona fide occupational requirement. To avoid a case of “he said, she said, they said,” it makes a significant impact and strengthens your claim if you have emails, letters, text messages, voicemails, or other forms of documentation of the alleged discrimination. In other words, make sure to document your experiences so that your case is as solid as possible.
Ministry of Labour
Another potential option depending on the circumstances for unpaid wages or termination pay is through the Ministry of Labour (“MOL”). This is a government ministry that is responsible for labour issues within Ontario and enforces labour legislation, including the Employment Standards Act, 2000 and the Ontario Health & Safety Act. While going through this route may be more cost-efficient on its face, it is also important to keep in mind that choosing this venue to pursue a claim is restrictive.
Generally, once a claim is initiated and/or a decision is reached at the MOL, an employee can no longer pursue their claim at the court level even if there is an unfavourable decision. A decision through the MOL also limits you to your minimum entitlements under the Employment Standards Act, 2000. This could be problematic if the employee’s entitlements are more than the minimums provided by the ESA which generally requires legal advice from a lawyer to know if that is the case.
Workplace Safety and Insurance Board
The Workplace Safety and Insurance Board (“WSIB”) is the body that enforces the Ontario Workplace Safety and Insurance Act (“WSIA”). The WSIA contains provisions to ensure safe working environments for employers and employees, while also creating a workers’ compensation insurance scheme for specific employers within our province. These employers can be classified into two groups: Schedule 1 or Schedule 2. The primary distinction between these groups is that employers who fall under Schedule 1 are not individually liable to provide benefits to their employees, but Schedule 2 employers are individually liable.
The WSIB makes it more accessible for employees to report dangerous/hazardous work conditions, make injury claims, and facilitate return to work and recovery. It also assists employers in ensuring that their policies and guidelines maintain the safety of the workplace. Further, it has its own tribunal (“WSIAT”) to assist in decision-making for various workers’ compensation-related claims. However, the WSIA only applies to employees who are employed by Schedule 1 employers, so be sure to double-check whether you qualify. Making a claim through this tribunal can also restrict your ability to pursue a claim civilly.
The most important take away from this information is that every case is different and each employee’s unique set of circumstances will help determine the most appropriate venue for their claim. In order to determine what would be most beneficial for your employment matter, please give Monkhouse Law a call for a free phone consultation.
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