Dealing with an Employer Who Doesn’t Pay You
By Richa Sandill, Staff Lawyer and DVCLS Employment Law Team Lead
At our legal clinic we receive far too many calls from people whose employers fail to pay them their wages. These calls can range from employers who pay wages haphazardly, to employers who don’t pay wages on time, to employers who make people work without pay for weeks only to then disappear when asked for wages.
The Employment Standards Act (ESA) requires that employees be paid wages for all work performed. Employers are to pay wages on time, on a set pay period (be it weekly, monthly, biweekly, etc.) and that pay must be at least minimum wage. Currently in Ontario, minimum wage is set to go up to $16.55 an hour as of October 1, 2023. Similar requirements for wages are found in the Canada Labour Code for federally regulated employees (such truckers, post office workers, telecommunications employees).
It is therefore absolutely illegal for an employer to withhold or fail to pay you wages. There are several steps an employee should take if they find themselves not being paid properly despite performing work for their employer.
1. Make Demands for Wages in Writing
Any lawyer’s first piece of advice for situations like these will be to start building evidence in the event that things need to move forward. Ensure that you start putting your requests for your employer to pay you into writing. Outline the amount and number of hours that you are missing pay for. Ask them when they intend to pay the amount. Whether this is in an email, a text message, or other written form of communication, make sure you start creating a paper trail of some kind in case things need to move forward.
2. Gather Records
Along with suggestion number 1, ensure that you have accurate records of the hours/dates for which wages are owed. This could be in the form of paystubs, punch cards, schedules, timesheets, Google location tracking showing routes you drove/proving you attended an office or a client location, or even a handwritten journal of the hours you have worked. The best records are contemporaneous, meaning they are made at the time that the unpaid wages are accrued. If the matter goes to the Ministry of Labour, you will be asked for proof of the hours you are saying are unpaid, so the sooner you start building this record, the better.
3. Seeking Legal Advice
If despite talking to your employer you don’t receive the wages you believe you are owed, it is worth speaking to your local legal clinic or an employment lawyer for advice about your options. Depending on if unpaid wages are your only issue, or if there are other employment law issues at play with the unpaid wages, a lawyer may recommend a few different options: (1) a Ministry of Labour claim or (2) a Small Claims Court/Superior Court claim.
Ministry of Labour Claim
In many cases, a lawyer may recommend obtaining unpaid wages through a Ministry of Labour claim. The Ministry of Labour enforces the ESA. It is a very straightforward process for the most part and while you can hire a lawyer to help you, you don’t need one. You have two (2) years from the date of an unpaid wage to file a claim at the Ministry of Labour.
The Ministry of Labour will review your claim and investigate by speaking to both you and your employer. It will gather evidence from both sides, and make decisions based on both the evidence and credibility of each party.
The Ministry can choose to either issue an order if it thinks the employer has contravened the ESA, or choose to issue no order if it thinks the employer hasn’t done anything wrong. If the Ministry thinks the employer has done something in violation of the ESA, it will also often order the employer to pay administrative fees or penalties.
If your only issue is unpaid wages, and/or there are other ESA issues at hand such as overtime pay or public holiday pay, then the Ministry of Labour is often the better route. More complex cases may need to go through civil courts as explained below.
Small Claims Court/Superior Court
Sometimes unpaid wages are not the only issue an employee is facing with their employer. We see many cases for example where on top of having unpaid wages, long service employees are terminated from their employers and not given proper “severance”. They may have also faced discrimination or harassment in the workplace. The Ministry of Labour unfortunately does not have the power to award remedies for discrimination or award “common law” severance. In those scenarios, a lawyer may advise you that the better route is to file a Small Claims Court claim or, if your claim is worth more than $35,000.00 in total, a Superior Court claim for civil damages.
The main difference is that Superior Court processes are a lot more “self-guided” in terms of parties needing to schedule a lot of steps between themselves, and in accordance with the Rules of Procedure, to move a matter along. In contrast, Small Claims Court matters are very dependent on the individual Court scheduling key steps like a settlement conference or a trial for the parties.
There are also much higher costs to move a Superior Court matter forward, given that parties will have to hire private services for key steps like examination for discovery and mediation. In contrast, Small Claims Court does not have costs for the most part associated with it apart from filing fees and/or process server fees if you choose to use one to serve or file your documents.
The bottom line is that your employer can face several different consequences for failing to pay you. Take steps to protect yourself and ensure that your rights are not violated.
This is legal information and not legal advice. If you need further information or need legal advice, please call our Intake Line at 416-441-1764 ext. 1 or complete our online Intake Form.