So you want to change the Ontario Employment Standards Act?

The Toronto Star has recently been running a series about “precarious employment”. In the series is highlighting what they believe are failings in the Ontario Employment Standards Act. Some lawyers and politicians have picked up this mantle and are now calling for changes.

As a lawyer who represents Employers, I come at the issue from a different view point, but since we’re talking change, let’s do this. Here are some changes I would like to see:

1. The Employment Standards Act codify the maximum amount of notice to be provided to an employee.

The position of employee-centric people is that the Employment Standards Act week/year to a maximum of 8 weeks is not sufficient to protect employees.

The reality is that common law increases that notice to approximately one month/year or more. This makes for a lack of predictability for employers, unless they use employment contracts that limit entitlements to the Employment Standards Act Amounts. Employee-centric people argue that litigation is not available to all. The reality is there are many law firms who handle wrongful dismissal litigation on a contingency fee basis: everyone can afford that.

If the ESA codifies the maximum notice, then everyone is on the same footing: this is a good thing.

2. Allow verbal vacation requests for less than a one week period to be valid requests.

Many employers are unpleasantly surprised to learn that if an employee does not request a vacation of shorter than one week in writing, that time off is not accepted as a vacation day and the employer can end up paying twice.

3. Have statutory notice run from the date the notice of termination is given, not the end date of the notice.

An employer who generously gives more than the Employment Standards Act minimum notice, for eg. 7 months notice instead of 7 weeks required should not be punished for being more generous than the statue requires.

The above are only a few examples of changes to the Act that would avoid Employers finding themselves in a “gotcha” situation when they have been more generous than the Act requires, but find themselves treated as if they have not done so.

Fair means fair to both the Employer and the Employee.

Inga B. Andriessen JD
iandriessen@andriessen.ca

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