Allow concurrent claims in both civil courts & the Board until one or the other has been resolved
WAGE THEFT An article on the front page of the Toronto Star Wednesday, February 17, 2016 identified a problem experienced by too many employees, wage theft;
Simplicity is the ultimateEssentially wage theft occurs when an employer refuses to make payment to an employee for work which has been done. An investigation by the Star found that the Ontario Labour Relations Board (the Board), which is mandated to review and act on breaches of the Employment Standards Act of Ontario, has issued thousands of orders to pay. But only a handful has been fully and properly responded to. Although mechanisms exist which would allow the Board to enforce payment they are limited in number and are sophistication. - Leonardo da Vinci
Unfortunately employees who have used the Board have no independent recourse and must rely on the Board to ensure enforcement of these orders.
The problem is that The Ontario Labour Relations Board, a governmental regulatory body, exists to ensure that the Employment Standards Act (ESA) is complied with. However, resources are thin, representatives from the Board are often overwhelmed by the volume of cases and, as civil servants, they serve the public at large, not individual employees. Therefore it is not surprising that so many cases slip through the cracks. Finally, as the Board is charged only with implementation of the ESA, additional common law rights, remedies and procedures over which individual employees would have had control are unavailable.
It is no wonder that so many employers feel immune and free to flout the law. For instance an employee whose employer fails to pay what they are owed can sue for constructive dismissal and recover not only the amount owing but also common law notice. In some instances other damages may also be recoverable.
The Star article mentions several possible solutions and also identifies what other jurisdictions do to promote compliance. Higher fines for recalcitrant employers, additional Board inspectors and a public fund against which an employee can make a claim if an employer refuses or can’t pay have been suggested. Under the current regime, an employee has the right to access the civil courts instead of using the Board. However, if an employee opens a file with the Board he/she will be precluded from using the civil courts unless the complaint is withdrawn within two weeks of the complaint being filed.
I suggest that the ESA allow for concurrent claims in both jurisdictions and that the complainant be allowed to hold one in abeyance at his/her discretion until the matter has been adjudicated upon. At the very least an employee should be allowed to pursue independent enforcement proceedings once an order to pay has been issued.
There are major benefits to going through the Board. There is no charge, as civil servants, inspectors and the Board are paid by the government. Costs in the civil courts can be quite high. Also, Inspectors have extensive disclosure entitlement so without too many procedural barriers and with less delay than in the regular courts Inspectors can be in possession of relevant documentation. This drastically cuts down on the time it takes to resolve a matter.
However, the mandate is quite limited. Another negative is that the employee has virtually no control over the process. Hence, he/she is at the mercy of someone who may be less than enthusiastic in the pursuit and enforcement of a claim. This is a major negative, as valid claims may not be prosecuted vigorously or at all.
WAGE THEFT BY THE NUMBERS
According to the Star’s data, last year, there were more than 12,500 successful claims against employers, totalling $18.9 million in unpaid wages, vacation, overtime, severance, termination pay and other entitlements. In that same year, the Ministry of Labour prosecuted just eight law-breaking bosses, and issued 246 “tickets” to employers, typically ranging from $250 to $360.
You don’t have to do the math, to see the system needs an overhaul and employees in Ontario need a resolution.
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