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Have you been terminated from your job? Think carefully before filing a Ministry of Labour complaint

3 minute read

It often comes up in my practice that an employee, after having been dismissed, immediately files an Ontario Ministry of Labour complaint for termination pay, severance pay, or both. They believe they have been treated unfairly, and are seeking retribution against their employer. Filing a complaint with the Ministry of Labour is done before they seek out legal advice, likely because it is easy and a fast way to retaliate. They are often surprised when I tell them that filing the complaint may have prejudiced their ability to seek the full amount of damages to which they may otherwise be entitled.

Sections 97 and 98 of the Employment Standards Act, 2000 (“the ESA”) prohibit an employee from bringing a complaint through the Ministry of Labour and a court action with respect to the same matter. These provisions stem from the legal principle of “res judicata”, which is, in essence, that where a legal issue has been adjudicated, the same issue cannot be re-litigated in a different forum. In other words, you cannot repeat the fight and a complainant will be barred from bringing a claim in another forum with respect to the same matter. In the case of termination pay and severance pay, if the employee brings a claim to the Ministry of Labour, they cannot bring a court action with respect to the same pay issues.

This would not matter if you could get the same damages out of either process, but the answer to the question “can’t you claim the same money in both” is “no”. Employment Standards Officers appointed by the Ministry of Labour can only award an employee their entitlements under the ESA. By contrast, a court can award damages for “reasonable notice”. Reasonable notice is a presumptive entitlement that applies to all employees in Ontario. A court will look at a number of factors (including an employee’s age, tenure, character of employment, and ability to find comparable employment) and determine how much notice the employer was required to give the employee upon termination. Reasonable notice grants employees, in most instances, a far greater entitlement than what the ESA dictates. The ESA only guarantees an employee’s minimum entitlements at law. The difference between an employee’s reasonable notice entitlement and their entitlement under the ESA can be substantial. To take an example, a dismissed 25-year employee at a small company may be entitled to eight weeks’ notice (or pay in lieu of notice) under the ESA, whereas they could be entitled to two years’ notice (or pay in lieu of notice) as reasonable notice.

It is imperative to know your rights and seek legal counsel before you file a complaint with the Ministry of Labour. You could be giving up your right to seek the full amount of damages that your employer owes you.

At Lerners LLP, we have a wealth of experience advising employees about their rights. If you are concerned about which forum to use to seek the full amount of damages from your employer, we can help.

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George A. Hamzo

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