Author: Daniel A. Lublin
Is the public interest being subverted?
An individual’s experience, related below, provides an example of why you should be careful when you call the Ministry of Labour.
Following her termination, an individual contacted the provincial Ministry of Labour, seeking advice about her situation. She had not yet contacted a lawyer and the ministry representative who was randomly assigned to pick up the phone did not immediately encourage her to do so.
The two spoke at length about her matter. The individual explained that she had not been paid termination or severance pay, at which point she was encouraged to make a statutory complaint. This was the first error. The Ministry enforces the provincial legislation only, but it does not provide a remedy for common law damages such as wrongful dismissal, which in this case actually made up the bulk of this person’s claim.
Without training in employment law, neither the ministry representative nor the individual realized their mistake. As a long-term employee, this person was entitled to considerably more than what the Employment Standards Act could offer. As well, since the legislation caps damages at $10,000, which courts do not, the individual had an upper limit to her claim.
Although the Ministry could easily address and then remedy her complaint, this was not the problem. It was that once it has taken steps to do so, an individual loses the right to file a wrongful dismissal claim. Here, since this person’s damages were in excess of the statutory minimum, the bulk of her damages then would be relinquished – an issue that most employment lawyers would spot as a matter of course.
The Ministry has safeguards, but they are not always effective. No surprise there. After most complaints are made, the Ministry mails the claimant a standard form letter explaining that if the complaint is not withdrawn within two weeks, the claimant will not be able to file a wrongful dismissal claim. However, since most people will believe, even if incorrectly, that they received “advice” from the Ministry, they are unlikely to withdraw their complaint or later pay for a lawyer’s time to obtain a second opinion. The result is that they are then stuck with their original claim.
This example is not an exception. The Ministry’s hotline, which fields calls from prospective complaints, should explain only what the Act says and how it may have been interpreted in the past. There is no mandate to provide recommendations, or worse, to provide advice. Yet it happens anyway when some of the Ministry’s representatives habitually blur this distinction. When they do, the public’s interests may be subverted.