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Responding to Employee Complaints

complaints

Complaints by an employee are always difficult, but learning that an employee has filed a complaint alleging that their employer is not complying with the law is the stuff of nightmares for an HR professional. Handling a complaint about a potential legal violation by the employer is a sensitive and critical task – and HR plays a key role in responding to the complaint and any subsequent investigation. If you are faced with a complaint, it’s important to understand the process and your legal obligations.

Complaints by the Numbers

In Ontario in 2022-2023, the Ministry of Labour, Immigration, Training and Skills Development completed 11,718 complaint investigations under employment standards legislation. The top violations found during those investigations related to:

  • payment of wages
  • vacation pay/vacation time
  • termination pay
  • public holidays/public holiday pay
  • overtime pay

There can be many reasons for non-compliance, one of which is employers not understanding their obligations (including not staying on top of changes to their obligations). Reports at both the federal and provincial level have recognized this – we have a complex set of employment laws in Canada which can lead to inadvertent non-compliance. And the laws are not only complex, they change all the time. Compliance Works reports on over 250 changes to employment laws in Canada every year. The complexity and pace of change contribute to the challenge of compliance.

Complaint Procedures

Most employment legislation in Canada includes a complaint procedure, including the following:

  • Health and Safety
  • Employment Standards
  • Human Rights
  • Labour Relations
  • Official Languages
  • Accessibility
  • Pay Equity

A complaints procedure allows employees, or others, to make a complaint to the Ministry or a ministry designated official. Unlike taking legal action against an employer, there is no cost to an employee who makes a complaint to the ministry. When a complaint is made, the ministry takes over any investigation into the complaint.

The process for investigating a complaint is different under each Act and in each jurisdiction. If a complaint is made, you should obtain legal advice to ensure you understand your rights and obligations during the course of any investigation.

In many jurisdictions there is a time limit for bringing a complaint. The time limit may vary depending on the type of compliant and depending on whether the employee is still employed. Generally, the time limit is between 6 months and 2 years, but there are some exceptions to that.  For example, there is no time limit on an employment standards complaint (other than complaints related to averaging agreements) in Alberta provided the employee continues to be employed. If the employee’s employment is terminated, complaints must be brought within 6 months of termination.

In addition to the time limit, complaints by unionized employees also may not be permitted. It is important to understand the specific legislation to determine whether a complaint is permitted to proceed.

Complying With a Complaint Investigation

If a complaint does proceed, the legislation generally provides the Ministry or its designate with broad investigatory powers. You should have already obtained legal advice, but if not, it is important to have legal counsel during the investigation. Many legal issues may come up during the course of the investigation, including ensuring that you understand the extent of the investigator’s powers. Generally, an investigator will have the power to:

  • Enter any place
  • Question anyone
  • Require the production of documents
  • Inspect the workplace

The exact powers vary depending on the legislation and the jurisdiction. For example, under health and safety legislation, inspectors generally have even broader powers than those listed above. Failing to comply with an investigation is an offence under all legislation and can result in significant penalties.

No Reprisals For Complaint

In many cases, the legislation also specifically protects employees from reprisals for having made a complaint. This means that you cannot discriminate against, retaliate against or punish an employee for having made a complaint or for having complied with the Act. These protections generally extend beyond the employee who made the complaint and apply to any employee who participated in the investigation. Again, it is important to understand the specific prohibitions in each Act and each jurisdiction.

In Ontario, for example, the Employment Standards Act, 2000 provides that employers cannot intimidate, dismiss or otherwise penalize an employee or threaten to do so, because the employee:

  • makes inquiries about their rights under the Act,
  • files a complaint under the Act,
  • gives information to an employment standards officer, or
  • testifies or participates in a proceeding under the Act (among other things).

In several jurisdictions, including Ontario, if an employee claims that there has been a reprisal, the burden of proof is on the employer to prove there was no reprisal.

HR plays an important role in ensuring that the complainant or anyone who participates in an investigation is protected from retaliation. Be sure to understand the scope of the prohibition on reprisals and monitor the situation to ensure that employees do not face adverse treatment because of their complaint.

Following the Complaint

In addition to complying with any order that is issued following the investigation, this is a good time to review all of your organization’s policies and practices to prevent similar issues in the future. It is easy to see how responding to a complaint investigation can quickly become time consuming and costly. Use this opportunity to understand how and/or why you were out of compliance. Were there obligations that you weren’t aware of? Did you misunderstand an obligation? Were your policies out of date or did you miss a change in the law? Understanding how the issue arose can help you prevent similar issues in the future.

Review our HR Compliance Guides, including our Ontario HR Compliance Check-Up, to help get you started.

How Compliance Works Helps Employers

The best way to avoid a complaint is to ensure you are complying with your legal obligations in every jurisdiction where you have employees. HR compliance requirements can vary considerably from one province to the next, and they frequently change.  Compliance Works makes it quick and easy to understand your obligations and to stay on top of changes.

complaints
Responding to Employee Complaints 2

Contact us to Book a Demo or email us at info@complianceworks.ca to learn how a subscription to Compliance Works can help your organization to save time and money, and reduce risk.

About the author

Gayle Wadden
Gayle Wadden CLO, Compliance Works
Gayle Wadden is a senior lawyer with deep experience in employment and corporate law. She is responsible for overseeing Compliance Works’ legal content.

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