Under the provisions of the Open for Business Act, the Ministry of Labour may decide to require that an employee let their employer know about an Employment Standards Act complaint before the claim can be formally accepted by the Ministry of Labour for processing. In other words, a worker with an Employment Standards Act complaint can be denied access to the Ministry of Labour’s enforcement system if they do not raise their complaint with their employer first. This is a departure from the previous process wherein workers had an unequivocal right to have their complaints directly filed and adjudicated at the Ministry of Labour regardless of whether the workers had first approached their employer with the complaint.
Employment Standards Officers will also now be empowered to attempt to settle or resolve complaints at an early stage. These same officers are also empowered to make final decisions on the merits of claims when claimants or respondents do not provide evidence within certain timelines, or when parties fail to attend Ministry-scheduled meetings.
One of the motivations for these changes is that the Ministry of Labour has a backlog of 14,000 claims that it hopes to eliminate by enacting these changes. Although there is a clear need to address this backlog, some critics are wondering whether forcing complainants to go to their employers first may deter people who have suffered from serious breaches of their employment rights from coming forward. Indeed, some workers may not come forward out of fear that they may be terminated or subjected to other employer reprisals. Other workers, especially vulnerable employees such as recent immigrants, people supporting families on a single income, and people in rural communities, may also feel intimidated approaching their employers first regarding employment standards breaches.
The Open for Business Act also proposes that the Ministry of Labour may waive the requirement to approach the employer first in certain circumstances, but it’s not yet clear how the discretionary waiver of this requirement will work in practice.