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Welcome to YouCounsel.

Three days ago, on May 29th 2020, the Ontario government made certain changes to Employment Standards Act under its regulation called Ontario Regulation  280/20 which temporarily takes away certain important rights that employees had previously during the Covid19 emergency. What are those changes? What are those rights that have been taken away?  We will briefly explain that in today’s lecture.

We begin with our usual disclaimer, that this lecture is not legal advice. If you have any specific questions, you should contact a lawyer or a paralegal or the Law Society of Ontario if you require a referral to a lawyer.

There are two kinds of changes. One is that employers have a right now to reduce or eliminate the employee’s hours; and then, the second is that the employer has the right to reduce employee’s wages. The third thing that I want to mention is that the common law rights of employees are intact. These are rights, under the Employment Standards Act. But the common law rights are intact, but let’s explain what does this all mean.

Let’s begin with the reduction or elimination of hours. This is the link for the regulation I’ve provided (https://www.ontario.ca/laws/regulation/200228?search=regulation+228%2F20).

I will also provide it in the description of this lecture, so you can visit this regulation and understand it in more detail. First of all, what you want to understand is that these changes that have been allowed are for the duration of Covid19 emergency, plus 6 weeks. The day when the emergency is considered terminated, for an additional six weeks, the employers will have these rights available, and they start from March 1st 2020. They continue until the emergency is ongoing.  Once the government announces that the emergency has ended, then beyond that for six more weeks the employers do have these rights to reduce or eliminate an employees’ hours. The reduction or elimination of hours must be related to Covid19. How do you go about determining whether an employer’s reduction or elimination of hours is indeed related to Covid19—that is anyone’s guess? But, that is one of the requirements.

Secondly, the most important part you want to understand is that employer has this unilateral right, now, to reduce or eliminate any employees hours.  Prior to that—if you understand a little bit of employment law rights—if you were entitled to let’s say 40 hours per week of hours in your employment and if the employer wants to reduce your hours to 30 hours or 25 hours you will have to agree to that reduction of hours. If you do not agree to that, then you get into a situation called constructive dismissal. You are ordinarily allowed to go file a complaint with the Ministry of Labor or commence a court action in court and then you will be able to get compensation on that basis.

This unilateral change is allowed. This means that the employer is not required to seek an approval agreement from the employee. Employer can make those changes unilaterally.  What the changes, what the regulation indicates is that because of that change the employee no longer has a right to claim constructive dismissal under the Employment Standards Act. Previously you did have that right, if you were an employee.  Now you no longer have that right to claim constructive dismissal under Employment Standards Act during this time period.

If you file a complaint, obviously you should not file a complaint because you do not have the right to do so now—but if you do file a complaint with the Ministry of Labor on this issue on the reduction or elimination of hours not any other issue, then under the Regulation, it specifically states that it will be considered that no complaint has been filed.  So, the assumption is that you cannot file the complaint.

The only saving grace here is that if your hours are completely eliminated then, you still have a right to reinstatement at the end of the emergency plus 6 weeks. Your job is still intact even though you’re not earning any money because your hours are either eliminated or reduce money because your hours are reduced, but you still have a right to reinstatement. However, if your position is completely eliminated at the end of the emergency period plus 6 weeks, then obviously you don’t have a position to go back to and then in that case your employment is terminated and at that time your termination rights will be triggered.

Similar principles apply to reduce wages.  The employer, now (during Covid19 emergency plus 6 weeks) can, on grounds related to Covid19, reduce an employee’s wages unilaterally. Again it’s a unilateral change. If you earn $20 an hour and if the employer decides to reduce your wages to $14 or $15 an hour, as long as it is not below the minimum wage, the employer can do that.  It does not require your approval.  Similarly you cannot claim constructive dismissal under the Employment Standards Act. You cannot go to the Ministry of Labor and file a complaint because, again, the complaint will be considered not filed. Again if your wages are 0, that means you had no hours, you still have a right to the reinstatement unless your position is completely eliminated in which case your termination rights will be triggered at that time.

Now I mentioned that the common law rights are intact. If you understand a little bit about the regime of different kinds of entitlement for employment law in Ontario and if you have listened to any of my previous videos or watch the lectures you would know that you could have rights under Employment Standards Act and you could have rights under common law which are enforced by the court. If you are pursuing your rights under the Employment Standards Act, then you go to Ministry of Labor.  There is no cost for you.  You filed a complaint to the Ministry of Labor.  An inspector gets appointed. He or she will investigate and make a decision. There isn’t really any burden on you other than filing a complaint with the Ministry of Labor and then they will take over and look after that matter.

But there is a limitation with respect to those kind of complaints, because Ministry of Labor’s complaints are within the four corners of the Employment Standards Act and nothing beyond that.  If it is a common law dispute they do not even have the power or jurisdiction to deal with that matter. These changes are relating to Employment Standards Act. It is relating to the Ministry of Labor’s power so Ministry of Labor now under Employment Standards Act, cannot give you those rights for constructive dismissal for reduction of your wages or reduction of hours. But you can still go to court because under common law rights if there is a reduction of wages or reduction of hours and that is unilateral then you can claim constructive dismissal under common law and you may be entitled to damages. Those rights are still intact.

The takeaway from all of this is that the indication from the Regulation is that this loss of rights is temporary.  It is only during Covid19 emergency plus 6 weeks.  The idea, I believe, is that if you were temporarily laid off and your termination rights are triggered because of the original Employment Standards Act, not the one that has now changed, then it would have triggered your rights for termination and severance pay and that would have caused significant burden to the employer, who now has to run the business despite all the challenges of Covid19 and payout the termination and severance payments to various employees.

The government in this situation, what they’re thinking behind all of this is that allow the employer some breathing space so they can continue to operate. But the problem is that while allowing the employer breathing space this is taking away significant rights from employees and so their rights are affected. The only part that you want to keep in mind is that only the rights under the ESA are affected, common law rights are not affected.

What is the impact of this?  There is a disproportionate impact on low wage earners because higher wage earners who have the capacity to hire a lawyer and go and file a claim in courts may still be able to go and apply for their common law rights and get those rights given to them through the courts. However, for low wage earners it is harder for them to retain lawyers and therefore the impact – the negative impact of this, is the low wage earners who would previously go to Ministry of Labor to have these rights enforced, do not have any venue now to enforce these right. We will keep you updated on any further changes as they come along.

Thank-you for watching.