Toronto resident Gordon Butler asked his employer, a small construction company in Markham, for one day off work after he sliced his thumb open on the job. His boss told him not to come back. “I didn’t believe him,” says Butler, 44, who has an 8-month-old child. “I tried to plead with him, and he said ‘No, too bad.’ ” Third in a four-part series.
Show up to work one day and get fired for no reason?
Sorry about your luck.
In Ontario, not a single worker is protected from wrongful dismissal under the Employment Standards Act.
Hit with the flu and can’t make it into the office?
Consider sucking it up, because chances are you won’t get paid. You’ll be lucky to keep your job, in fact.
Have to put in extra hours one week to get the job done?
Whatever you do, don’t expect overtime pay. Or even to get paid at all.
Ontario’s outdated employment laws, currently under review, were designed to create basic protections for the majority of the province’s non-unionized workers.
Instead, millions are falling through the gaps created by a dizzying array of loopholes, from the dangerous to the downright bizarre.
Construction workers have no right to take breaks on the job.
Care workers aren’t entitled to time off between shifts.
Vets aren’t entitled to vacation pay.
Janitors have no right to minimum wage.
Cab drivers aren’t entitled to overtime pay.
And dozens of occupations, some that you’ve never even heard of, are exempt from basic rights entirely.
“Keepers of fur-bearing mammals” have no right to minimum wage.
Sod layers have no limits on their daily hours of work.
Shrub growers don’t get a lunch break.
The system is so complicated that the Ministry of Labour has developed a special online tool to help decipher who’s entitled to what.
But as the province reviews its antiquated Employment Standards Act, critics argue that its confusing web of exemptions makes it harder for the so-called precariously employed to defend their rights — and easier for bosses to ignore them.
“When you distil it down to what these exemptions are seeking to achieve, really they are to give employers more control over work and more control over wages,” says Mary Gellatly of Parkdale Community Legal Services.
“It sends the message to employers that they can get away without complying.”
The Act was first introduced in Ontario in 1968 to set basic work standards, especially for non-unionized employees who don’t have a collective agreement to provide extra protections.
But there are at least 45 occupations in Ontario that are exempt from a variety of its fundamental entitlements, many of them low-wage jobs in industries where precarious work is rife.
The Ministry of Labour says many of the exemptions are “long standing” and related to “the nature of the work performed.”
But York University professor Leah Vosko, who is leading research into employment standards protections for the precariously employed, says exemptions have come at least in part from industry pressure, leaving the Act a “complex patchwork that is difficult for workers and even officials to comprehend.”
number of non-unionized employees lacking the right to even one unpaid, job-protected sick day
of Ontario workers who worked overtime in 2014 and did not get any pay for it whatsoever
of low-wage, non-unionized Ontario employees don’t have full access to overtime pay
of high-income employees don’t have full access to overtime pay
Even when there are clear violations, speaking out can come at a cost.
Reprisal is illegal under the Act, meaning bosses can’t penalize employees for exercising their workplace rights. But the Act gives workers no protection against wrongful dismissal. Employers do not have to give cause for firing someone.
Unionized employees are generally protected by their collective agreements, and workers can sue employers if they think they have been unfairly terminated.
But most precarious, low-income employees are not unionized, and most do not have the money to take legal action against an employer, says Parkdale’s Gellatly.
“It’s the big reason why many people can’t do anything if they’re in a workplace with substandard conditions, because they can get fired without cause.”
Linda Wang, who worked at a Toronto cosmetics manufacturer for four years, was fired less than two weeks after she asked her employer for the extra pay she was owed for working a public holiday. She says no reason was given for her termination.
Wang, a mother of two, claims her employer repeatedly bullied her and her colleagues, and that she believes she was dismissed for asking for the wages.
She has filed a reprisal complaint with the Ministry of Labour, but Wang cannot afford to take her employer to court.
“I feel the system is against workers,” she says. “It’s in favour of employers.”
“Whatever job you have you put so much of yourself into it,” adds Gellatly. “The fact that employers can just fire you without a reason is incredibly devastating for folks.”
The Act also contains significant gaps when it comes to sick leave and overtime.
The legislation provides most workers with 10 unpaid days of job-protected emergency leave, which means they can’t be fired for taking a day off due to illness or family crisis.
Critics call this measure subpar by most standards, since it still causes many workers to lose a day’s income for being ill. An estimated 145 countries give employees some form of paid sick leave.
“Unfortunately, we stand out for our inadequacy,” says Brock University professor Kendra Coulter.
But the 10-day protected leave doesn’t apply to almost one in three of the province’s most vulnerable workers. An exemption that excludes employees in workplaces of less than 50 people from that right means 1.6 million workers in Ontario are not even entitled to a single, unpaid, job-protected sick day.
Fast-growing, low-wage sectors such as retail, food services and health care are most likely to be exempt according to a recent report by the Workers’ Action Centre.
While many small businesses voluntarily give their employees paid sick days, the loophole leaves many workers — especially the precariously employed — exposed.
Toronto resident Gordon Butler asked his employer, a small construction company in Markham, for one day off work after he sliced his thumb open on the job. He says his boss told him not to come back.
“I didn’t believe him,” says Butler, 44, who has an 8-month-old child. “I tried to plead with him, and he said ‘No, too bad.’ ”
“The way it’s stacked up right now is there are very few options for people who are in low-wage and precarious work to actually take sick leave when they’re sick,” says Steve Barnes, director of policy at Toronto’s Wellesley Institute, a health-policy think tank.
“They not only have to worry about lost income, but the potential for losing their jobs,” adds Brock’s Coulter. “It’s unkind and unnecessary.”
The stress caused by the province’s meagre sick leave provisions are compounded by exemptions surrounding overtime pay, to which around 1.5 million don’t have full access.
As a rule, employees should get paid time and a half after 44 hours a week on the job, according to the Employment Standards Act.
But in 2014, more than one million people in the province worked overtime, and 59 per cent of them did not get any pay whatsoever for it, Statistics Canada data shows.
This, experts say, is partly because enforcement is poor. But in Ontario, a variety of occupations don’t even have the right to overtime pay, including farmworkers, flower growers, IT workers, fishers and accountants. Managers are also not entitled to overtime.
Vladimir Sanchez Rivera, a 45-year-old seasonal farmworker in the Niagara region, says he has worked 96-hour weeks doing back-breaking labour picking cucumbers and other produce.
“We don’t have access to protections when we are working in agriculture,” he says. “And our employers tell us that.”
Low-wage workers are even more likely to be excluded from full overtime pay coverage, according to the Workers’ Action Centre’s research. Less than one third of low-income employees are fully covered by the Act’s overtime provisions, compared to around 70 per cent of higher earners, because they are more likely to work in jobs that aren’t eligible.
Workplaces can also sign so-called “averaging provisions” with their employees, which allow bosses to average a worker’s overtime over a period of up to four weeks.
That means an employee could work 60 hours one week and 50 the next, but not receive any overtime as long as they don’t work more than a total of 176 hours a month.
Critics say the measure means more work for less pay, and paves the way to erratic, unpredictable schedules.
“That’s a huge impact on workers and their families in terms of lost income and having to work extra hours,” says Parkdale’s Gellatly.
“It’s certainly not good for workers, for their families, and it’s not good for creating decent jobs in terms of rebooting our economy,” she adds.
For many of the precariously employed, falling through the gaps ruins lives.
“Even now, when I think about the working environment, I feel very depressed,” says Linda Wang, who, 10 months later, is still waiting for the Ministry of Labour to rule on her complaint.
“I feel panic.”
A recent report by the Workers’ Action Centre makes a number of recommendations to rebuild the basic floor of rights for workers. The proposed reforms include:
- Amending the ESA to include protection from wrongful dismissal
- Eliminating all occupational exemptions to ESA rights
- Repealing overtime exemptions and special rules
- Repealing overtime averaging provisions
- Repealing the emergency leave exemption for workplaces with less than 50 people
- Requiring employers to provide up to seven days of paid sick leave
Part-time. Temporary. Self-employed. This is the new norm for millions of Ontario workers, the so-called “precariously employed” struggling in the absence of regulations to protect them. As the province launches a review of its antiquated Employment Standards Act, the Star brings you their stories, and ways to fix it.
Part 1: Fair scheduling: ‘Wild West’ scheduling holds millions of Ontario workers hostage
Today: Closing the gap: Legal loopholes that leave workers exposed.
Part 4: Enforcing the law: Why holding bosses to account is harder than you might think.