I was on a panel today at Lancaster House’s Labour Board Law conference, with Peter Engelmann (Sack Goldblatt), Delayne Sartison (Roper Greyell), and Robert Breen, Q.C. (Chair of the New Brunswick Labour & Employment Board). It was a good panel, with lots of great discussion.
One of the items discussed was Ontario’s Bill 68, or the ridiculously named “Open for Business Act“. I’ve talked about this before. It introduces a new model for the ESA that would disallow claims unless the worker first investigates the ESA and determines what she is entitled to, and then approaches the employer directly to demand compliance. The government will refuse to accept complaints when the worker does not document her efforts in this regard. I argued before that this is unlikely to improve compliance with the ESA, but would reduce the number of complaints processed, because many employees will abandon their entitlements rather than work through this maze. And that’s the point, really, since the government wants to tackle the backlog of thousands of ESA files.
But, here’s a thought. Shouldn’t improving compliance be the objective of ESA reform? So I was challenged to suggest another way to tackle the backlog while also improving ESA compliance. I’m up to the task. Here’s what the Liberal government should do.
The law should require all employers to complete and provide employees with a new form within 2 weeks of the end of the employment contract, regardless of why the contract ended. It could be called the Statement of End of Employment. I’ve even drafted a template for the form for the Liberals to use (took me ten minutes).
Here is the Statement of End of Employment Form that I will allow the Liberals to use.
It wouldn’t take employers long to complete the form, since they should know most of the information already and the Ministry of Labour can create internet tools to idiot-proof the basic calculations required. In fact, the Ministry has already done this with its Termination and Severance Pay calculators on the website. The Ministry could also produce an information brochure explaining how to determine the information on the form. Thus, “education” is a major component of my proposal. Failure to complete the form would be met by heavy fines.
The form would require the employer to inform the employee of their entitlements under the ESA and to attach documentary evidence explaining how the employer has, or intends to, provide those entitlements. It flips the Bill 68 model on its head: the employer has to learn the law and inform the employee, rather then the other way round. Employers are already required to tabulate the information on the form, though many don’t (hence the compliance problem). So my model requires the employer to “learn” its legal obligations, and tells them how to do that with little effort. Employers will be concerned about writing down false information, since that form could become evidence of fraud or illegal conduct in a later investigation. The forms will also educate employees of their entitlements, and give them something simple to understand or to take to someone who knows something about the ESA. The form would also bring to light promptly any areas of dispute (such as the date of hire, rate of pay, and reason for dismissal).
My expectation is that this simply form would eliminate a large number of complaints by forcing the employer and the employee to turn their minds to the law while it is fresh in their minds and focus in on disagreements. It shares the philosophy of Bill 68–encouraging employees and employers to resolve disputes without government intervention–but unlike Bill 68’s model, it achieves this in a manner that is also likely to improve compliance with the legislation.
Feel free to pass this onto you local politician. Unless you think my model is hopeless. Comments welcome. Boy, this lawmaking thing is fun.