FAQ's - Answered
QUESTION: I started driving a small truck as a delivery person for a heating and air conditioning company just under 3 months ago. One night I found myself in a situation where the company credit card was not working and I needed to put gas in the truck just to get home. I ended up putting $162 on my own Visa. I submitted the bill, but it was not paid. Weeks went by with me reminding the boss that I was owed the money with no payment forthcoming. Although there was no complaints about my performance, just before the three month mark I was terminated with only my outstanding pay. Is there anything I can do?
ANSWER: You won’t like the answer. As you were employed for less than 3 months, the employer can terminate with you without any pay in lieu of notice. Unfortunately, the Ministry of Labour will not open a file to pursue expense reimbursement owed to an employee. They will collect wages, but not expenses.
That leaves you with only one option. You can start a Small Claims Court action. Just search online for “Small Claims Court, Ontario”. You will quickly find the Ministry of the Attorney General website, which takes you step-by-step through the process. Unfortunately, it’s going to cost you $95 to file the Claim with the Court. Small Claims Court is meant for people to represent themselves and I strongly doubt that your employer will even file a Defence. You will quickly be contacted and a settlement offer made. Make sure they pay you the filing charge as well as the amount of your claim to settle it. This is a lot to go through for $162, but it is the only remedy you have.
QUESTION: I have worked for a non-profit organization for about 5 years. Recently the President told me that the organization will be winding down by the end of the year, but timelines are not yet known. A major funding source has pulled out and the organization cannot continue. I received nothing in writing. Have I received working notice?
ANSWER: For most Judges, the answer is, and should be, no. The case law is very clear that in order for an employer to provide effective notice of termination, a specific end date must be provided. There is no law saying that the notice must be provided in writing, but employers who fail to provide a letter are making a risky move. It is up to the employer to prove that precise notice was given and without a letter that can be a challenge.
Some Judges have said that even though no precise date was given for your last day, the employer should get some sort of credit for the vague notice. I don’t like those decisions, but I can’t deny that they are out there.
I think that treating employees with dignity and respect means providing specific information, preferably in writing. Judges who give credit to employers who provide vague and uncertain information, undervalue employees’ rights.
QUESTION: I recently quit my job to accept a position as comptroller with a small startup company. A week later, I have now learned that there are employees owed wages and suppliers owed money. I am not confident that I am even going to get my first pay cheque. If I quit, will I get employment insurance? What should I do?
ANSWER: Don’t quit yet. If the employer doesn’t pay you substantially all of your owed wages with the first pay cheque, I think you would have a good argument to make with Service Canada that you are entitled to employment insurance as this constituted a constructive dismissal. If your wages are paid, you should keep working until they are not.
You’re not entitled to employment insurance if you resign from your job and there is no acceptable reason for that resignation to Service Canada. Speculating that you might not get paid will not likely cut it.
Finally, empower yourself. Start aggressively looking for new employment and if you have not already been replaced, think about approaching your old boss. You know things are going to go south with this job sooner or later so don’t sit around waiting for the axe to fall before you take matters into your own hands.
Ed Canning practices labour and employment law with Ross & McBride LLP, in Hamilton, representing both employers and employees. You can email him at firstname.lastname@example.org