Filing a complaint with the Ministry of Labour
QUESTION: I work as a customer service representative for a small company where I am paid $15 an hour and 7% commission on any extra services I sell to clients. For the three and a half years I have been there I have been paid every second Friday until about six weeks ago when my pay cheque showed up providing me the hourly rate but not my commission. My commission is about a third of my income. When I asked the owner he said he would get back to me but never did and another pay period went by without commission being paid.
Two weeks ago there was no pay cheque at all and I told him that until I was paid everything I was owed I wasn’t coming back to work. My boss texted me back and told me if I didn’t show up for three client meetings that had already been booked he would not pay me anything more. I do not have a written contract but I’m not going to throw good time after bad by working for someone who doesn’t pay me. What can I do?
ANSWER: Go online and google “Ministry of Labour, Employment Standards Ontario.” You will find a form that you can fill out to file a claim for unpaid wages, termination pay and reprisal.
The fact that you don’t have a written contract is not a problem. You were paid an hourly rate plus 7% commission and it is documented by the many pay cheques you received over the first three and a half years. He is not going to get to debate that point. By the way, at least 4% vacation pay is owed not only on your hourly rate but also on your commissions.
One of the implied terms of your employment is that if you render the services you get paid for them on a timely basis. By not paying you repeatedly, the employer constructively dismissed you. You were terminated without anyone saying, “You’re fired.”
If it had been just a matter of one pay cheque being late by a couple of weeks, I would not be giving this advice. But in your situation there is a repeated failure to pay clearly owed wages with no justification.
By failing to honour its part of the bargain, the employer has breached a fundamental term of the unwritten agreement. The employer has clearly expressed intention not to be bound by the contract. You are entitled to three weeks’ termination pay pursuant to the Employment Standards Act.
A lawyer could probably get you another five to nine weeks more than that by bringing a lawsuit. If you filed a Ministry of Labour complaint you can never sue for that extra money. You have to make the decision on whether you file a termination complaint based on how much you make per week and whether it’s worth it to go to a lawyer.
In your case, it may not be worth going to a lawyer since you also have a reprisal complaint. It is an offence against the Employment Standards Act
to punish in any way an employee for standing up for their minimum rights under the Act.
One of those minimum rights is to be paid for your work. By threatening to withhold money earned your employer engaged in an act of reprisal. You have the text. If an Employment Standards Act
officer finds that there was a reprisal, it gives them the jurisdiction to order damages arising from the reprisal and while there is broad discretion, I strongly suspect that you would get an award sufficient to make up for the extra five to nine weeks you are not pursuing through a lawyer.
The other reason not to go to a lawyer in this case may be that old saying that you can’t get blood from a stone. If the business is in trouble and you don’t end up being able to collect, the money you spent on a lawyer will put you further in the hole. It doesn’t cost you anything to file a complaint with the Ministry of Labour so if there ends up being no money in the pot at least you won’t be out of pocket.
Ed Canning practices labour and employment law with Ross & McBride LLP, in Hamilton, representing both employers and employees. You can email him at email@example.com