An individual’s experience, related below, provides an example of why you must be careful when you call a provincial Ministry of Labour.
Following her termination, an individual contacted the Ontario Ministry of Labour, seeking some advice about her situation. She had not yet contacted a lawyer and the ministry representative who was randomly assigned to pick up the phone did not immediately encourage her to do so.
The individual planned to contest her dismissal and so the representative immediately encouraged her to file a complaint. This was the first error. Although the Ministry enforces the provincial legislation, it cannot provide a remedy for more significant claims for wrongful dismissal since most of those claims generally exceed the scope of the legislation.
As well, even though the Ministry could easily address and then remedy the complaint, this was not the problem. It was that once it has taken steps to do so, an individual loses the right to later file a wrongful dismissal claim in court. Here, since this person’s damages were in excess of the statutory minimum, the bulk of her damages then would be relinquished — an issue that most employment lawyers would spot as a matter of course.
The Ministry has many safeguards, but they are not always effective. No surprise there. After most complaints are made, the Ministry mails the claimant a standard form letter explaining that if the complaint is not withdrawn within two weeks, the claimant will not be able to later file a wrongful dismissal claim. However, since most people will believe, even if incorrectly, that they received “advice” from a Ministry, they are unlikely to withdraw their complaint or later pay for a lawyer’s time to obtain a second opinion. The result is that they are then stuck with their original claim.
This example is not an exception. The Ministry’s hotline, which fields calls from prospective complaints, should explain only what the Act says and how it may have been interpreted in the past. There is no mandate to provide recommendations, or worse, to provide advice. Yet it happens anyway when the general public or some of the Ministry’s representatives habitually blur this distinction. When they do, the public’s interests may be subverted.
• Daniel Lublin is an employment lawyer with Whitten & Lublin LLP.