Working Manual for Agency Counsellors

Transcription

1 Working Manual for Agency Counsellors Employment Standards Employment Insurance Workers Compensation WOODGREEN COMMUNITY CENTRE Immigrant Services 835 Queen Street East, Toronto, Ontario M4M 1H9 Telephone: (416) ext FUNDED BY THE UNITED WAY OF GREATER TORONTO

2 ACKNOWLEDGEMENTS WoodGreen Community Centre would like to extend its appreciation to the Chinese Interagency Network of Greater Toronto (CIN), Chinese Workers Support Network and Daniel Yau of the Metro Toronto Chinese and Southeast Asian Legal Clinic, Consuelo Rubio of the Centre for Spanish Speaking People, Rebecca Lok of the Injured Workers Consultants, and Mary Galletly of the Parkdale Community Legal Services, for their support and assistance in the development of this Working Manual for Agency Counsellors. 1

3 FOREWORD Many immigrants and refugees work in non-unionized and low-paid sectors, or in the underground economy. Their lack of language skills and knowledge of employment regulations, coupled with overall apprehension associated with being new to a country, limit their access to the system, and subject them to workplace hazards, harassment of various natures and other human rights violations. While Canada has employment acts that protect the rights of workers, the acts and the related procedures are often complex. (Even locally born Canadians may find it difficult to follow the rules. Expecting newcomers to understand them will indeed be a challenge.) Apart from some specialized counsellors, such as legal aid counsellors, people in the professions of helping immigrants and refugees may find updating their knowledge of workplace-related regulations challenging. Many counsellors spend a lot of time just locating the right source of information, not to mention helping the client follow the proper procedure. On the other hand, immigrants and refugees tend to return to the same agency for one-stop-shopping service, putting extra responsibility on the counsellors who already have to deal with a variety of issues facing their clients. WoodGreen Community Centre has been dealing with workplace issues for more than a decade. It offers public education seminars on an ongoing basis to enhance immigrant and refugee workers knowledge on employment-related acts and workplace issues. It runs workers support groups to enable workers to share their experiences and to support each other. It has helped dismissed workers of a factory to successfully win a court case against their employer. Financial support from the United Way of Greater Toronto has enabled WoodGreen to develop three resources, namely the Working Manual for Agency Counsellors (English), the Service Kit for agency counsellors (English), and the Worker s Self Help Manual (Chinese). Collectively, the aim is to help both immigrant and refugee workers, and agency counsellors to have information on various acts handy and to follow the proper procedures so that a case can proceed with minimal complications. All three resources cover Employment Standards, Employment Insurance and Workers Compensation. Under each of the topics, the Working Manual for Agency Counsellors systematically presents and explains the acts in everyday language. Diagrams are used, where appropriate to give visual representations of the procedures and case examples serve to further help the reader grasp the application of the acts. The Resource Kit supplements the Working Manual in providing related information, including community resources, related web site addresses, claim process flowchart, sample forms, and sample letters to be used by agency counsellors. The Worker s Self Help Manual (Chinese) for Chinese immigrant and refugee workers similarly presents and explains the acts under the three major areas. The step-by-step approach is meant to make the procedure less deterrent to immigrants and refugees. The worksheets of computing owed salaries not only provide a simple tool for workers, but also serve to give them confidence to take ownership of the various rights in the workplace. The resources are meant to be tools for agency counsellors and immigrant and refugee workers themselves. It is important to note that each situation is unique. Workers are encouraged to continue to seek help in community agencies when it is needed. Similarly counsellors are advised to share information among colleagues both within and outside their agencies. The interest of workers is best protected by counsellors collaborating widely in the community. 2

4 Laws and policies change. It is important to remember that the resources here are NOT legal documents. If more information is needed, please contact the appropriate government departments, community legal clinics, or a lawyer. 3

5 I EMPLOYMENT STANDARDS ACT 4

6 EMPLOYMENT STANDARDS ACT Contents 1. Introduction 6 2. Who is covered by the Employment Standards Act 6 3. Minimum wage 6 4. Hours of work 7 5. Overtime 8 6. Public holidays 9 7. Vacation Leaves Termination of employment Severance pay Voluntary agreements Getting out of the agreement Non-reprisals Filing a claim with the Ministry of Labour Case Examples References 20 5

7 1. INTRODUCTION The new Employment Standards Act 2000 (ESA) was proclaimed on September 4, It sets the minimum standards in a workplace. The Act covers most workers in Ontario in areas of minimum wage, hours of work, break time, overtime, pregnancy and parental leaves, emergency leaves, public holidays, vacation, and termination and severance of employment. Overall, the new ESA has impacted on workers. A major difference between the old and the new ESA is that agreements can be made between workers and employers to change the standards for working. Therefore, it is extremely important that workers know their rights under the ESA, and understand the consequences of signing agreements with their employers. 2. WHO IS COVERED BY THE EMPLOYMENT STANDARDS ACT? The Employment Standards Act covers most workers in Ontario. Workers who work in sectors under federal jurisdiction, such as airlines, banks, post offices, railways, radio and television stations, are not covered. They are covered by the Federal Employment Standards Act. Some workers are covered partially by the ESA. For example, certain farm workers are covered only in the areas of leaves (maternity, parental and emergency), termination, and severance pay. As well, some workers have special rules that apply to some of their rights under the ESA. Some construction workers only get overtime after working 55 hours a week instead of 44 hours a week for other workers. For a full listing of exemptions and special rules, check with the Ministry of Labour (MOL). 3. MINIMUM WAGE Employers are required to pay workers at least a minimum wage. This is regardless of whether or not the workers have agreed to work for less than minimum wage. General minimum: $6.85 Students under 18 years of age: $6.40 Liquor servers: $5.95 Homeworkers: $7.54 Three Hour Rule If workers are called in to work, and have worked less than 3 hours before being sent home, they must be paid one of the following, whichever is the greater amount: 3 hours at the minimum wage, or their regular wage for the time worked However, this Three Hour Rule does not apply to students (including students over 18 years of age) or workers whose regular shifts are 3 hours or less. 6

8 4. HOURS OF WORK Daily Work Hours The ESA stipulates that the maximum hours of work per day are 8 hours or the regular work day set by the employer. This maximum can be changed by a written agreement between worker and employer. Written Agreements on Maximum Hours of Work Daily If employers want workers to work more than 8 hours or to establish a longer regular work day up to a maximum of 13 hours (including 2 half-hour unpaid breaks), they must ask workers to sign an agreement. Workers can get out of the agreement by giving employers 2 weeks written notice stating that they do not want to work more than 8 hours per day, or the regular work day if longer than 8 hours. If workers accept a new job that has a regular work day longer than 8 hours, they must abide by the agreement. Workers cannot get out of an agreement if they have signed the agreement and the employer has obtained a permit from the Director of Employment Standards of the Ministry of Labour stating that the regular daily work hours can go beyond 8 hours up to a maximum of 13 hours. The only way such an agreement can be removed is if both employer and worker(s) agree to do so. Weekly Work Hours The maximum weekly work hours are 48 hours. This maximum can be changed by written agreement between workers and employers. Written Agreements on Weekly Maximum Hours of Work The maximum weekly hours can extend beyond 48 hours up to a maximum of 60 hours only if workers sign an agreement with the employer. Workers can cancel the agreement by giving the employer 2 weeks written notice informing the employer that they no longer want to work more than 48 hours per week. But workers cannot get out of an agreement if they have signed the agreement and the employer has obtained a permit from the Director of Employment Standards, stating that the regular weekly work hours can go beyond 48 hours up to a maximum of 60 hours. Furthermore, employers can a get special permit from the Director of Employment Standards to extend the weekly work hours beyond 60 hours. Break Time Workers are entitled to a half-hour unpaid break for every 5 hours of work. Employers do not have to give workers coffee breaks. 7

9 Written Agreements on Break Time If employers want to divide the half-hour unpaid break into two unpaid breaks (that total 30 minutes), they must obtain workers consent via written agreement. Weekend Employers must give workers at least 1 day off in 7 days or 2 consecutive days off in 14 consecutive days. No written agreement is required. 5. OVERTIME Overtime is calculated on a weekly basis. Workers get overtime pay (premium pay) of 1 and ½ times their regular pay rate for each hour they work after 44 hours in a given week. The same also applies to workers who get paid on a fixed salary basis. Written Agreements on Overtime Averaging Employers can average workers overtime over more than one week, up to a maximum of 4 weeks, if workers agree in writing. Under this agreement, overtime pay is calculated on the average number of overtime hours worked over the averaging period, not the actual number of hours worked in each week. The following example illustrates the difference in overtime pay between overtime averaging and regular overtime calculation based on the hours worked over 4 weeks: 42 hours (1 st week), 56 hours (2 nd week), 60 hours (3 rd week), 26 hours (4 th week) Overtime averaging: 42 hours + 56 hours + 60 hours + 26 hours = 184 hours worked over 4 weeks 184 hours 4 weeks = 46 hours a week 2 hours (46 hours 44 hours) + 2 hours + 2 hours + 2 hours = 8 overtime hours Regular overtime: 0 hours (less than 44 hours) + 12 hours (56 hours 44 hours) + 16 hours (60 hours 44 hours) + 0 hours (less than 44 hours) = 28 overtime hours Therefore, with overtime averaged over 4 weeks, a worker loses 20 hours (28 hours minus 8 hours) of overtime pay. If the worker was paid $10 per hour, s/he would lose $100. Since the worker was paid a regular wage rate - not the overtime rate - for overtime hours worked, s/he was underpaid by $5 per overtime hour. The calculation is: $5/hour x 20 hours = $100. 8

10 Agreements on overtime averaging can last up to a maximum of 2 years unless the agreement specifies a shorter time frame. Employers can average the workers overtime for longer than 4 weeks if the approval from the Director of Employment Standards has been obtained. Agreements on overtime can only be revoked if both the employers and the workers agree to get out of the arrangement. Time off in lieu Employers must get the workers agreement in writing to take time off in lieu of overtime pay. Workers get 1 and ½ hours paid time off for each hour of overtime worked. Workers must take the in lieu time off within 3 months unless written agreements are made to take the in lieu time off within 12 months. 6. PUBLIC HOLIDAYS There are 8 public holidays: New Year s Day, Good Friday, Victoria Day, Canada Day, Labour Day, Thanksgiving Day, Christmas Day and Boxing Day. Workers are entitled to have days off with pay on public holidays regardless of whether they work part-time, full-time or contract, and regardless of the length of employment under their current job. Workers must work their regularly scheduled shifts before and after the holiday or have reasonable cause for not working in order to qualify for a paid public holiday. If the public holiday falls on a worker s non-working day or during a worker s vacation, the worker can get either: a substitute holiday off with public holiday pay (Worker must take the substitute holiday off within 3 months after it was earned unless s/he has agreed in writing to take the day off within 12 months.), or public holiday pay for the public holiday if the worker agrees in writing Public holiday pay is calculated over the previous 4 weeks earnings divided by 20. Therefore, for the part-time worker, holiday pay is less than a full day s pay. Written Agreements on Public Holidays If the employers want the workers to work on a holiday, they must get the workers agreement in writing with one of the following options: workers will be paid premium (1 and ½) pay and holiday pay for hours worked, or workers will be paid at regular pay rate for hours worked and get another day off with holiday pay (Workers must take the substitute holiday off within 3 months after it was earned unless workers have agreed in writing to take the day off within 12 months.) 9

11 Some workers in hotels, restaurants, hospitals or other types of continuous operations are required to work on a public holiday. These workers do not have the choice of the above options. The employers decide which option is used to pay the workers. 7. VACATION Workers get 2 weeks' paid vacation after working for the same employer for 12 months (this includes time workers were away from work because of layoff, sickness or injury, approved leaves, pregnancy, parental and emergency leaves). Workers can take their vacation in 1 or 2 week blocks. Vacation must be taken within 10 months after the workers have earned it. Vacation Pay Employers must pay workers at least 4% of their gross earnings in the 12 months for which the vacation is being given. Vacation pay must be given to the workers before they take the vacation. However, if the duration of the vacation is less than 1 week, vacation pay must be given either on or before the payday for the period during which the vacation is taken. Gross earnings includes: regular earnings that include commissions, overtime pay, public holiday pay, termination pay, and allowances for room and board. Regular earnings do not include gratuities. Written Agreement on Vacation & Vacation Pay Employer must get worker s agreement in writing: to take vacation of less than 1 week s duration. to be paid vacation pay on each pay cheque as it accumulates, or to be paid vacation pay at any other time 8. LEAVES Pregnancy and Parental Leaves Workers are entitled to pregnancy and parental leaves. These leaves are unpaid time off work for workers who have worked for the same employer for at least 13 weeks. These 13 weeks include time spent away from work, such as sickness. This entitlement is regardless of whether the workers work part-time, full-time or contract. The employers cannot penalize workers for taking leaves, and must give people their old jobs back when workers return from their leave. Workers on pregnancy or parental leaves continue to get benefits offered by the employers and earn seniority and service time to earn vacation and other entitlements. 10

12 The ESA provides job-protected pregnancy and parental leaves. The Employment Insurance Act provides maternity and parental benefits while workers are on such leaves. Pregnancy Leave A pregnant worker is entitled to 17 weeks of pregnancy leave. The employer cannot dictate when a pregnant worker takes her leave. She can begin the leave 17 weeks before her baby s due date at the earliest. But she must give at least 2 weeks written notice to her employer. It is important to note that the worker does not lose her right to a pregnancy leave if she does not provide notice to the employer. The employer can ask her to provide a medical certificate. A worker can start her pregnancy leave on the baby s due date at the latest. If the baby is born prematurely, her leave begins on the day the baby is born. If a worker has a stillbirth or suffers a miscarriage after she began her leave, she is still entitled to the rest of the pregnancy leave. However, the pregnancy leave for this worker ends on whichever is the later date: 17 weeks after the leave began, or 6 weeks after the stillbirth or miscarriage Parental Leave Birth mothers who take pregnancy leave can take up to 35 weeks of parental leave, and 37 weeks for all other new parents. Birth mothers can begin their parental leave immediately after their pregnancy leave ends. Other new parents can start the leave within 52 weeks after the date of the babies birth or when the babies first came into their care or custody. Workers who have stillbirths or miscarriages and their spouses or partners are not entitled to parental leave. Emergency Leave Workers are entitled to 10 days of unpaid emergency leave in every calendar year if their employers regularly employ at least 50 workers. Emergency leave can be taken for the following reasons: personal illness, injury or medical emergency illness, injury, medical emergency, death or other urgent matters relating to members of the family, including same-sex partner, or a relative who is dependent on the worker for care or assistance Workers must tell their employers before they take their leave. If not, they must tell the employers as soon as they can. If workers take only part of the workday for the leave, employers 11

13 can count it as a full day of leave. In addition, employers can ask workers to prove that the leave is justified. 9. TERMINATION OF EMPLOYMENT When employers fire or permanently lay off workers who have continuously worked there for 3 months or more, the workers are entitled to either written termination notice or termination pay. Termination of employment occurs when employers: stop employing the workers, for example: due to bankruptcy constructively dismiss workers, and workers resign in reaction to the constructive dismissal. For example, if the employer imposes a term or condition that the worker cannot or does not wish to agree to, the worker may have to resign. lay off workers for the duration longer than a temporary layoff, which is more than 13 weeks of layoff within 20 consecutive weeks Written Notice of Termination Employers must give workers written notice of termination that is called the statutory notice period. The duration of the notice given to the workers depends on their length of continuous employment specified in the following table. Length of employment Notice required Less than 3 months none 3 months but less than 1 year 1 week 1 year but less than 3 years 2 weeks 3 years but less than 4 years 3 weeks 4 years but less than 5 years 4 weeks 5 years but less than 6 years 5 weeks 6 years but less than 7 years 6 weeks 7 years but less than 8 years 7 weeks 8 years or more 8 weeks During the statutory notice period, employers must: not reduce workers wage rates continue to maintain workers benefit plans pay workers the wages they are entitled to 12

14 Termination Pay If employers do not give workers written termination notice, they must give workers termination pay. The calculation of the payment is based on the workers regular weekly earnings multiplied by the number of weeks required in the length of their employment in the above table. Termination pay must include vacation pay. It must be paid either 7 days after the termination of employment or on the next regular pay date, whichever is later. Exemptions to Notice of Termination or Termination Pay Workers are exempted from getting notice of termination or termination pay if they: are found guilty of willful misconduct or willful neglect of duty are free to decide whether to work or not when employers offer them work, and workers can refuse work when it is offered without being penalized were hired for a specific length of time or to do a specific task fail to return to work within a reasonable time after being recalled from a temporary layoff are reaching retirement age in accordance with the organization s policies 10. SEVERANCE PAY Severance pay is given to workers to compensate the loss of seniority and job-related benefits, and to recognize a worker s long service. It is separate from termination pay. Employers sever workers employment when they: stop employing workers, for example: due to bankruptcy constructively dismiss workers, and workers resign in reaction to the constructive dismissal lay off workers for 35 or more weeks within 52 consecutive weeks lay off workers due to permanent closure of all business of an establishment give written notice of termination to workers and workers resign by giving 2 weeks written notice, and the resignation occurs during the statutory notice period Workers are eligible to severance pay if they: have worked for the same employer for five or more years; AND were employed by a employer who: had a payroll of at least $2.5 million in Ontario, or 13

15 had severed the employment of 50 or more workers within 6 months due to part or total business closure The calculation of severance pay is to multiply a worker s regular weekly earnings by: the number of completed years of employment, AND the number of completed months of employment divided by 12 for the year that is incomplete Workers are entitled to up to 26 weeks of severance pay. It must be paid either 7 days after the termination of employment or on the next regular pay date, whichever is later. Written Agreement on Severance Pay If employers want to pay severance pay in installments instead of a lump sum, they must get a worker s agreement in writing or the approval of the Director of Employment Standards. Employers must pay the total amount within 3 years. If they fail to make a scheduled payment, they will have to pay the rest of the severance pay for all workers immediately. 11. VOLUNTARY AGREEMENTS The new ESA allows employers to ask workers to enter into voluntary agreements that will lower basic employment standards in the areas mentioned at the beginning. Workers must have a good understanding of the agreements and the consequences before they make any decisions on whether to sign them or not. Equally important, workers must know their rights as workers in this respect. An agreement should include: names of the employer and worker date of signed agreement date that agreement comes into effect and expires name of the employment standard that is being changed and description of the specific arrangement in place of the basic standard in the future signatures of the employer and worker An agreement is not in effect if: both the names of the employer and worker are not there the description of the arrangement in place of the standard is not clear the consequence of not following the agreement is not clear the worker is forced to sign the agreement because the employer: threatened to fire him or her 14

16 threatened to reduce his or her hours or pay penalizes other worker(s) for not entering into the agreement(s), and the worker signed the agreement in order to avoid being similarly penalized An agreement is void if there is no informed consent as a result of any of the following: a worker is told by the employer to sign the agreement as a requirement of the job and does not have the opportunities to read the agreement a worker cannot read the agreement, and it is not read to him/her before s/he signs it a worker does not understand the language in the agreement, and it is not read to him/her in a language that s/he understands before s/he signs it a worker is told by the employer that s/he is bound by the terms of employment in the employee handbook without ensuring s/he has the opportunity to read and understand the provisions in the handbook an important term is not easily readable Workers can ask to take the agreement home to read and think about it before making a decision. This way, they can discuss the agreement with their families, friends or ask for help from community agencies. Before signing an agreement, workers should ask themselves how the terms in the agreement would affect them in the following areas: their health their family/social life their daily routine their earnings their getting out of the agreement (caution: Is there a permit from the Ministry of Labour?) 12. GETTING OUT OF THE AGREEMENT There are different avenues for workers to get out of an agreement depending on the employment standard that is being changed. Workers do not need to fulfill any obligations in the agreement if the agreement is deemed to be void and/or there is no informed consent as mentioned in the previous section. Work Day Longer Than 8 Hours Daily If workers sign an agreement to work beyond 8 hours per day, or the regular work day if longer than 8 hours, they can get out of the arrangement by giving the employer 2 weeks notice in writing, stating they do not want to work more than 8 hours per day, or the regular work day if longer than 8 hours. 15

17 Workers cannot get out of an agreement if they take a new job that has a regular work day longer than 8 hours, or the workers signed the agreement and the employers have gotten permits from the MOL stating that the regular daily work hours can go beyond 8 hours. The only way such an agreement can be removed is if both employers and workers agree to do so. Weekly Work Hours Beyond 48 Hours Workers can get out of an agreement on working beyond 48 hours per week by giving employers 2 weeks written notice. Workers cannot revoke an agreement if they signed the agreement and the employers have permits from the MOL indicating the weekly work hour can go beyond 48 hours. In such cases, weekly work hour arrangement can only be dissolved if both employers and workers agree to do so. Overtime Averaging It is hard to get out of an agreement on overtime averaging. An agreement on overtime averaging can last up to a maximum of 2 years unless the agreement specifies a shorter time frame. The only way to cancel such an agreement before the expiry date, requires resolution from both workers and employers to do so. Public Holidays Agreements to work on a public holiday should be signed before the holiday. The agreements should indicate a specific public holiday (not all public holidays). If workers do not want to work on a certain public holiday, they do not have to sign. Vacations When workers sign an agreement on taking vacations shorter than 1 week, they should be aware that they are signing only for days they take off during that time. Agreements on Changes to Other Employment Standards Agreement should be time and activity specific. If workers want to cancel an agreement before the expiry date, the only way is to have both the employers and workers agree to the cancellation. 13. NON-REPRISALS Employers should not penalize workers for exercising their rights under the Employment Standards Act. For example where workers: ask about their rights under the ESA 16

18 ask employers to comply with the ESA file a complaint against the employers while continuing to work there provide information to the Employment Standards Officer who may be investigating the company take or plan to take leaves (maternity, parental, emergency) refuse to work on Sundays for religious reasons if they are retail workers refuse to sign agreements that lower the employment standards or want to get out of a signed agreement If workers file complaints with the MOL against employers who penalized them for exercising their rights under the ESA, it is the employers responsibility to prove that they did not penalize the workers. It is important that workers keep records of all incidents (who, what, when, how) and names of any witnesses. There is a 2 year limit for workers to file a complaint with the MOL against an employer. 14. FILING A CLAIM WITH THE MINISTRY OF LABOUR Whenever an employer breaks the law, workers can file a claim with the MOL regardless of whether they are still on the job or not. It is the employers responsibility to prove that they did not violate the law or penalize workers for exercising their rights under the ESA. It is very important that workers keep detailed records (who, what, when and how) of all incidents in order to help demonstrate that an employer has violated the law. In addition, workers should find out if the same thing has happened to other workers. Information on names of witnesses and copies of all documents, such as pay stubs, cheques, contracts and records of employment, are also important in building a case against an employer. Workers have up to 6 months to file a claim if an employer owes them money, and up to 2 years if the employer penalized them for exercising their rights under the ESA. If workers are still working for an employer who broke the law, they can ask the MOL to do an investigation. The request can be made anonymously so that the employer will not know who requested the investigation. If the MOL determines after the investigation that the employer violated the ESA, a compliance order may be issued to tell him/her to comply with the Act. If the employer violates the ESA repeatedly, the MOL may make an order of repeated contraventions and penalize the employer. What Happens After a Claim is Filed? After a worker sends a claim application to the MOL, s/he will receive a letter stating that the MOL will undertake an investigation of the claim. As well, an Employment Standards Officer will be assigned to the case. 17

19 If needed, the officer will arrange a fact-finding meeting with the worker and the employer. The worker should bring all necessary documents to the meeting. S/he can choose to attend the meeting alone or bring someone along. S/he may be able to get help from a local community legal clinic or labour council. If s/he has difficulties with the English language, s/he should bring someone to interpret. Lastly, the worker can bring his/her notes to guide his/her argument. The officer will send the worker a letter of decision on the claim after the investigation is completed. If the officer decides in favour of the worker s claim, s/he will issue an order against the employer. The order explains to the employer that s/he must pay outstanding wages or vacation pay, or compensate for reprisals and/or reinstate the worker, depending on the worker s claim. If the officer decides against the worker s claim and the worker disagrees, the worker can request to have the decision reviewed within 30 days of receiving the officer s letter of decision. 15. CASE EXAMPLES Example 1 Anya had been working for the same employer for two years until she was let go because of downsizing. There was no termination notice. The employer issued her a cheque dated for the next week that covered the last two weeks of work. When she cashed the cheque, it bounced. She informed her employer about this. He issued another cheque dated one week later to her. The same thing happened. She went to the employer again. However, she was told that he was out of the country and would not be back until the following month. Anya tried to contact the employer the following month. She was told that he had gone away again and no one knew when he would return. She did not know what to do. Action The worker was informed that she was entitled to termination pay and her employer also owed her vacation pay. Her termination and vacation pay were calculated. A demand letter was written informing the employer of the worker s rights under the ESA, and the amount he owed her, which included wage, termination and vacation pay. If there was no response to the demand letter, the worker could file a claim with the Ministry of Labour. Worker s Protection When a worker s employment is terminated without a written notice of termination, s/he is entitled to termination pay. Vacation pay is calculated on both the worker s gross earnings and termination pay. A worker has 6 months starting from his/her last day of employment to file a claim with the MOL on money owed by the employer. 18

20 If the employer is still out of the country, the company s accountant or the board of directors is required to respond to the investigation. Example 2 Mahmood s father was ill. Mahmood s mother had called him at work a couple times in the past month to ask him to take his father to go to the emergency. His employer was not happy about this because there was so much work that needed to be done. He told Mahmood that he did not want this to happen again. Mahmood tried to explain to the employer that he could not promise this because he was the only one taking care of his parents. A month later, Mahmood was called to assist his father in another emergency. Before he left, the employer told Mahmood that this had happened too many times, and asked Mahmood to make a choice: stay or leave. Mahmood chose to quit his job. Action Mahmood was constructively dismissed because the employer imposed an unreasonable term or condition that left Mahmood with no other choice but to quit. Mahmood filed a complaint with the MOL that he quit his job because of constructive dismissal, and that his employer owed him termination pay. Even though Mahmood quit his job, he filed an E.I. application with an explanation of why he quit his job. Worker s Protection If a workplace hires 50 or more workers on a regular basis, each worker should have 10 days of unpaid emergency leave in every 12 months. A worker is entitled to termination pay if s/he quit his/her job because of constructive dismissal. If a worker is being dismissed for trying to exercise his/her rights under the Act (i.e. emergency leave in this case), s/he can file a complaint with the MOL to ask for his/her job back or for compensation. Example 3 Cheng was working as a sewing machine operator for 8 hours per day. Her employer asked her to sign an agreement to work 10 hours per day, 4 days per week. Since she was afraid of losing her job, she signed the agreement. As time went on, she found it very difficult to work such long hours. She was tired and did not have much time with her children. During a lunch break, she found out that other workers were in the same situation as she was. They wanted to get out of the agreement, but they were afraid of losing their jobs. Action Workers needed to find out if the employer had a permit from the MOL to have them work more than 8 hours per day. 19

21 If there was a permit, they will have to work for 10 hours per day until the agreement expires. If there was no permit from the MOL to work for more than 8 hours per day, a worker can get out of the agreement by giving 2 weeks notice to the employer. If the employer ignores his/her notice, a worker can file a complaint with the MOL. Worker s Protection If workers give an employer notice that they want to get out of an agreement, the employer cannot fire them, worsen the working conditions for the workers, nor lower their wage rates. Workers can give the employer notice that they want to get out of an agreement any time they want. If an employer ignores a worker s notice, the worker can make a request anonymously if s/he wishes to the MOL to send an Employment Standards Officer to investigate the situation. Employers cannot penalize workers for not signing an agreement. 16. REFERENCES Your Guide to the Employment Standards Act, Ministry of Labour Information Bulletin: Employment Standards, Workshop materials developed by Parkdale Community Legal Services and Workers Information Centre. 20

22 II EMPLOYMENT INSURANCE 21

23 EMPLOYMENT INSURANCE Contents 1. Introduction Eligibility Application procedure Amount of E.I. benefits Length of E.I. entitlement Common problems Appeals References 33 22

24 1. INTRODUCTION Employment Insurance is part of the social safety network. It is intended to provide temporary financial assistance to workers who are out of work and functions in the same way as an insurance system. Workers pay premiums into the system when they are working. When they are out of work, they apply to collect their benefits. Premiums in the system come from two major sources: employee contributions and employer contributions. The Federal Government administers the employment insurance system through the Employment Insurance Act, which is managed by Human Resources Development Canada (HRDC). 2. ELIGIBILITY Claimants: Must apply Have paid E.I. premiums Have been without work and without pay for at least seven consecutive days Have worked for the required number of insurable hours Must be available for work Must be looking for work if they are applying for regular benefits. This does not include workers applying for sickness, maternity or parental benefits. Must complete report cards on time Must attend interviews or workshops arranged by HRDC Insurable Hours Required for Regular Benefits: Year preceding the Qualifying Waiting Benefit Period Qualifying Period Period Period 52 weeks 52 weeks 2 weeks "x" no. of weeks Application for Regular E.I Benefits i. New entrants and Re-entrants need 910 insurable hours in the qualifying period. Claimants are considered as new or re-entrants if: 23

25 They are entering the workforce for the first time. They are re-entering the workforce after an absence of 2 years or more, or They have been employed or "attached" to the labour force for less than 490 hours in the year preceding the qualifying period. They have been attached to the labour force if, for example, they received E.I., Workers Compensation, strike pay or sick pay, or they attended a training program approved by HRDC. ii. iii. If claimants have received one full week or more of maternity or parental benefits in the 208 weeks (4 years) preceding the 52 week period prior to the qualifying period, they will require between 420 and 700 hours to qualify for regular benefits. If claimants are NOT New entrants or Re-Entrants, they need insurable hours to qualify depending on the unemployment rate in the region they live in. Insurable Hours Required For Special Benefits - Maternity, Parental and Sickness Benefits: Claimants need only 600 insurable hours in the last 52 weeks or since the start of their last claim, whichever is shorter, to be eligible for maternity, parental and sickness benefits. 3. APPLICATION PROCEDURE Claimants should do the following: Go to their local E.I. office. Submit their E.I. application as soon as they receive their Record of Employment (R.O.E.) from their employer, and no later than four weeks from their last day of work. If a worker applies for E.I. benefits beyond the four-week period, s/he can antedate the claim by giving the E.I. office an explanation indicating just cause in delaying the application. For example, if the worker was in hospital for one month, there would be a delay in applying for E.I. benefits. S/he may apply for an antedate because s/he had a justifiable reason for not applying on time. Claimants applying for maternity, parental or sickness benefits should apply as soon as they have stopped working. Information Required: Social Insurance Number (SIN) Two pieces of personal identification such as driver's licence, passport, health card Record of Employment (R.O.E.) Personalized cheque marked "Void" Medical certificate if claimant is applying for sickness benefits Details regarding the most recent employment 24

26 Detailed version of facts if claimant quit or was dismissed from any job in the last 52 weeks 4. AMOUNT OF E.I. BENEFITS Most claimants receive 55% of their average weekly insurable earnings, up to a maximum of $413 a week. To calculate the average weekly insurable earnings, HRDC staff will divide the total insured earnings in the 26 weeks before the claimants stopped working by a number of weeks known as a "divisor." Some claimants with children can get more money through a Family Supplement. To be eligible, the claimants and their spouses must receive Child Tax Benefits, and their annual household income must be no more than $25,921. Family Supplements can increase E.I. benefits to up to a maximum of 80% of the earnings, but no higher than $413 per week. Only one spouse at a time can get a Family Supplement. Claimants do not need to apply for a Family Supplement. If they are eligible, it will be added automatically to their E.I. payments. 5. LENGTH OF E.I. ENTITLEMENTS Regular Benefits Sickness Benefits Maternity Benefits Parental Benefits Weeks of Entitlement Depends on: a. the number of insurable hours of the claimant b. the unemployment rate of the region 15 (max) Claimant must have a medical certificate to indicate the duration of sick leave. 15 (max) Only payable to the biological mother. 35 (max) Can be claimed by the biological or adoptive parents / partners Either parent can claim full benefits, or benefits can be shared between the two parents/partners. 6. COMMON PROBLEMS The following are examples of some issues faced by people in applying for E.I. benefits or while receiving E.I. benefits. Each example shows the action taken to deal with the issue as well as the worker s rights to obtain E.I. benefits. 25

27 i. Missing Record of Employment Example Hong went to a community centre to ask for assistance in applying for E.I. He had been laid off after working in a factory for two months. The employer claimed that since the factory was such a small workplace, employing fewer than twenty workers, and Hong had worked there for fewer than three months, the factory would not issue a Record of Employment (R.O.E.) for him. As well, he did not have an R.O.E. from his previous job. The factory where he had previously worked for 9 months had already closed, and he could not contact his employer. Action Hong filled in an E.I. application together with the supplementary form: Request for Missing Record of Employment. Hong showed his efforts, though unsuccessful, at trying to get the R.O.E. from his previous employers. Hong showed his pay stubs and T4 slip from the previous job to prove his employment. HRDC had the authority to follow up with Hong s former employers. Protection for Workers The law states that all employers must give workers their R.O.E. within 5 days of an employee s stopping work. The total number of workers in the workplace and the duration of employment do not constitute any exception. Workers have to show their efforts in approaching employers to obtain their R.O.E. Even if these efforts fail, workers should not delay handing in the E.I. application. HRDC has the authority to follow up with employers concerning failure of issuing an R.O.E. Pay stubs and T4 slips are important records to prove employment, particularly when workers have not received an R.O.E. Sometimes co-workers could also be a means of providing evidence of employment, particularly in a situation where a business suddenly closes down and employers cannot be found. ii. Temporary Absence from Canada Example Rosa was on E.I. benefits for 35 weeks. After 5 weeks, she had to go to her home country for 10 weeks due to an urgent family matter. She was afraid that HRDC would cut off her benefits. When she returned 10 weeks later, she would still be unemployed and without any financial support. 26

28 Action Rosa informed HRDC about the urgent family matter and her plan to leave Canada. Rosa s E.I. benefits for those 10 weeks went on disentitlement. In this case, the disentitlement was just a suspension of E.I. benefits. Once she returned to Canada, she went to HRDC with her passport and travel ticket showing her date of return. HRDC made a decision to terminate (remove) her disentitlement. She was still able to receive her remaining 20 weeks of benefits, provided she continued to fulfill all the eligibility requirements for E.I. Protection for Workers Major grounds for disentitlement are: Not available for work Being out of Canada Failure to prove incapacity to work in the case of sickness benefits Failure to provide information upon request The period of disentitlement lasts as long as the claimant fails to fulfill the qualifying conditions. If the claimant s condition for disentitlement changes to entitlement, the claimant must report to HRDC to have the disentitlement removed. iii. Quitting the Job Example Pedro worked as a delivery driver for a company. The van he drove was stolen when he was making a delivery. The matter was reported to the police and the employer. The van was recovered two days later. Goods in the van were missing and there was some damage to the van. A month later, the employer told Pedro that he would have to pay for the amount of the goods ($3,000) stolen because there was no compensation from the insurance company. The employer would deduct $200 from each of his pay cheques to recover the $3000 loss. Pedro said that he had no choice but to quit. He received his R.O.E., indicating he had quit his job. Action Pedro filed his E.I. application with the supplementary form: Quit (Voluntary Separation from Employment). Detailed records of the incident leading to the termination of employment were included. 27

29 It was explained to HRDC that this was a constructive dismissal because the employer imposed a term or conditions on Pedro that he had not agreed to and did not have to accept. Copies of pay stubs were attached, including the last pay cheque, which indicated the deduction of $200. Pedro received his E.I. benefits after a period of investigation by HRDC. Protection for Workers Quitting a job without just cause could lead to disqualification from E.I. benefits. Workers are not entitled to claim any of the hours they worked to qualify for E.I. benefits, even if they have worked at the job for years. If workers can show they had just cause and had no reasonable alternative than to leave their employment, they will probably get E.I. Examples of a just cause include: Sexual harassment or harassment of another kind Relocation with spouse or common-law partner who has to move away Discrimination based on colour, gender, ethnic origin, sexual orientation, age, or union involvement Being expected to work in unsafe conditions Starting another job right away Significant wage reduction or major changes to job duties Not being paid for overtime worked or being forced to work excessive overtime Supervisor was unfair or hostile toward the claimant Employer wanted the worker to do something illegal Not being paid legal wages or being pressured by the employer to leave his/her job Having to care for his/her child or someone else in the immediate family When a claim is made after quitting a job with just cause, HRDC will investigate the worker and the employer. Based on information and evidence collected, HRDC will have to decide which side is more believable, and which of the stories is best supported by the likely circumstances. Claims to other authorities such as the Ministry of Labour for termination pay or the Human Rights Commission for discrimination cases might carry some weight in establishing credibility in the case of a worker who has quit. 28

30 iv. Fired Example Zhang worked as a processing worker in a wholesale company for five years. He asked for sick leave because he had a doctor's appointment. The supervisor told him to return to work after seeing the doctor because there was a lot of work. He drove back to work after the appointment. (He had just bought a car the week before.) He returned to work around noon. There was no place to park his car in the parking lot. He spotted a couple of co-workers cars parked at company spots which were usually reserved for the company's sales staff. He parked his car beside them. At lunchtime, the employer came in and asked why he had parked there. The employer claimed that there was a policy that non-sales staff cars could not be parked there, and that Zhang would be fined $10. Zhang argued that other co-workers cars were also parked there, and that he had never heard of the policy. The employer said that he did not see any other cars parked there except Zhang s car. Zhang denied what the employer said. They had an argument, which lasted for about 3 minutes. Then the employer left. Co-workers helped Zhang to move his car to another spot. At the end of the day, Zhang received an R.O.E. from the company stating that he was dismissed for misconduct. Action Zhang filed an E.I. application with the supplementary form: Fired (Dismissed). His work history and long-term good performance in the company were described in detail. The year before, he had won a long-time service award from the company. A detailed description of the incident about the parking and the argument with the employer were also included. The argument had not constituted a fatal or serious misconduct and should not have led to his dismissal. Zhang had a telephone interview with an HRDC officer. During the interview, Zhang was asked if he would respond differently if faced with similar incidents with the employer in the future. Because he did not want to go through the same painful process resulting in such a negative outcome again, he said he would. His E.I. application was turned down. Zhang filed his appeal to the Board of Referees. He went to the hearing. The appeal was successful, and he got his E.I. entitlement. Protection for Workers In order to constitute misconduct, the act must have been willful and serious in nature, must constitute the real reason for the discharge, and must not be used as an excuse to discharge the worker. 29