Anyone filed a claim under Employment Standards Act?

[mmouse]

I just filed a claim with the Ontario Ministry of Labour against my employer, for non-payment of wages under the Employment Standards Act. They refuse to pay a bonus I am owed under the terms of my contract.

Has anyone done this before? I'd be interested to hear how long it took and what the result was.

 

[buckwheat1]

if it's under a contract I may suggest seeing a labour lawyer.

 

[mmouse]

It's only a couple of thousand and the lawyers I've spoken to want $400 for initial consultation, so I'd prefer trying this route first.

 

[tboy]

A couple of questions:

1) This bonus, what is it based upon? Performance? Company profits? Work Load? Bonus' are usually based on some sort of criteria that must be met before they are paid out.
2) What is their argument for not paying you this "bonus"?

I bring this up because I had a similar problem. I had in my employment agreement that I would be paid a bonus which was supposed to make up for the long overtime hours etc and was based on company profits which I supposedly had some control over in my position.

In 8 yrs I was paid once and that bonus that was supposed to be in the thousands of dollars totalled $600.00.

Their excuse was that the profits on the projects I was in charge of were not meeting the minimum margins. Yet the parts of the projects I was in charge of were, it was the other department's who were making poor purchasing and scheduling decisions which led to the low margins. I argued until I was blue in the face and eventually resigned over this (and other issues).

 

[Twinklegirl]

Yes, I had to do that several years ago. it did take awhile, and my former employer did call me several times threatening this and that which I logged in a journal and provided to the government.

About 5 months later, I received a hefty cheque from the former place of employ. Made it all worth while

Tedious steps involved though. Make sure you pay attention and follow the protocol and you'll get what you are deserved.

 

[mmouse]

A couple of questions:

1) This bonus, what is it based upon? Performance? Company profits? Work Load? Bonus' are usually based on some sort of criteria that must be met before they are paid out.

It's based on company revenue in the year compared with last year (with no other conditions). Unfortunately it's a private company and this information isn't public.

2) What is their argument for not paying you this "bonus"?

I can't get a straight answer. I've been told it's because of the economic climate, then I was told that end of year numbers aren't finalized yet (which must be bullshit since 2007 revenue was announced in December 07).

 

[Mia.Colpa]

I just filed a claim with the Ontario Ministry of Labour against my employer, for non-payment of wages under the Employment Standards Act. They refuse to pay a bonus I am owed under the terms of my contract.

Has anyone done this before? I'd be interested to hear how long it took and what the result was.

It sounds like you have it in writing, which is good. I went this rout, but for unpaid vacation pay, and after a few months I was in front of a Ministry tribunal and the law is clear on this and the employer paid.

Bonus payout is a different thing, but if it stalls, take him to small claims court by yourself, this is straightforward, don't need a lawyer for a couple of thousand unpaid.

 

[tboy]

It's based on company revenue in the year compared with last year (with no other conditions). Unfortunately it's a private company and this information isn't public.

I can't get a straight answer. I've been told it's because of the economic climate, then I was told that end of year numbers aren't finalized yet (which must be bullshit since 2007 revenue was announced in December 07).

Ok, you have to be really clear on this: is it revenue, or profit? Rarely are bonus' paid on strictly revenue unless it was a sales goal or something (for eg: x salesman had to sell x amount of dollars).

Another thing about taking them to court, do you want your job afterwards? If an employee sued me I can tell you they wouldn't last the month.

One other thing: and this will depend on your finger on the pulse of the company, are things slowing down considerably? If it is the economic climate then something you have to think about is how devoted to the company are you? If you're ok with the company closing or losing your job, then go for it.

Now I know it burns you to see the big shots raking in the coin, and one time we were asked to take a cut in hours/pay and then the Pres shows up 2 days later in a brand new jag, but if the company is on the ropes you might want to consider approaching them and making a legal deal where they will pay you your bonus plus interest when the economy picks up again.

Now I love all the advice on here about how you should automatically take the company to court etc, it's almost as if there is a mentality out there that all companies are out to screw every employee. Maybe there are financial considerations that have not been divulged to the OP?

Most companies are reputable and are not out to fuck over their employees automatically. Fighting for a couple of thousand might cost you your job, and with the current economic climate you might not be able to find another.

OH, I don't know if you've ever received a bonus before, but be prepared to take it up the ass from RevCan. Bonus' are taxed at a much higher rate than your regular pay so if you're entitled to $2000.00, you will probably only end up with $1000.00 in your pocket. Even if you sue them for it and win, that is still considered a bonus and you'll still have to pay the hefty tax on it.

 

[JohnLarue]

If it is your current employer & you expect to continue to work there, you may wish to consider how this may affect your working relationship with your boss, advancement opportunities and job security.

It is a very difficult job market right now, make sure you understand the risks

 

[mmouse]

Yes, I am still working there. Working relationship is pretty rocky already so I don't think this will make it worse. Maybe I'm living in cuckoo land, but if they fire me for making filing a claim or taking them to court, shouldn't I be able to sue them to death?

I do realize however that this is not a good time to be job hunting. I'm being very careful not to give them valid cause for dismissal.

As for the bonus criteria, it is clearly spelled out that it is calculated on company revenue, not profit. A strange scheme since I'm not in sales. Everyone else has the same bonus plan, but most are too chicken shit to complain.

 

[tboy]

As for firing you for making a claim, they wouldn't come right out and say that's why they're firing you. People are getting laid off all the time for cut backs, slow downs etc and an employee can dismiss any employee at any time with sufficient severence pay/notice.

As for your situation being rocky, yeah, this will make it worse lol.

Again, as Larue said: you have to decide whether you can afford to lose your job over this bonus.

Now just wait until the pro union people get into this, the first thing they'd say is if you were union, you wouldn't be in this predicament (which is true, but the union would rather run the company into the ground than have a long term job anyways so.....).

 

[emerging44]

Yes, I am still working there. Working relationship is pretty rocky already so I don't think this will make it worse. Maybe I'm living in cuckoo land, but if they fire me for making filing a claim or taking them to court, shouldn't I be able to sue them to death?

I do realize however that this is not a good time to be job hunting. I'm being very careful not to give them valid cause for dismissal.

As for the bonus criteria, it is clearly spelled out that it is calculated on company revenue, not profit. A strange scheme since I'm not in sales. Everyone else has the same bonus plan, but most are too chicken shit to complain.

In Ontario, (thanks to Mike Harris), you can be laid off at any time for any reason so there is no really no such thing as "valid cause for dismissal" other than conditions which may be in your Conditions of Employment or Contract. When you are laid off, the severance your employer must pay you is based on practice rather than laid down in legislation. The Ministry or a lawyer will advise you on this.

If you are going to pursue your employer for your bonus, make sure you document everything. Keep copies of emails or letters, keep a note of dates and conversations etc. etc. If your boss or HR have a conversation with you, send them a note or email afterwards paraphrasing what they said to you.

Also, remember there is "constructive dismissal" whereby an employer tries to make your life so uncomfortable (gives you nothing to do or makes your life a misery) that you will leave rather than stay around. This is the same as being dismissed and you are entitled to the same (in some cases more) payment as if you were let go.

 

[oldjones]

Yes, I am still working there. Working relationship is pretty rocky already so I don`t think this will make it worse.…edit…As for the bonus criteria, it is clearly spelled out that it is calculated on company revenue, not profit. A strange scheme since I`m not in sales. Everyone else has the same bonus plan, but most are too chicken shit to complain.

I hope you`re right that it can`t get worse, because if the company truly did promise everyone the bonus based on revenue rather than profits, and they can`t afford to pay what they promised, then you`re not just working for welchers, you`re working for stupid welchers. And stupid people are bound to have ways of making things worse. Always have, always will.

Fortunately your misery has company, even if they`re of a mind to let management get away with whatever disreputable or dishonourable stuff, without making waves. Bad managers like yours are why workers join together and form unions. If your claim`s upheld your fellow workers stand to benefit too, so you should be able to get some joint action even from the chickenhearts, as long as you`re willing to carry the ball and take the flak.

Although your bosses may have been stupid enough to promise what they couldn`t deliver, workers (and their unions) can`t get away with that kind of self-defeating behaviour. Not unless they live in the fairyland where employees are out to destroy their employers (see above).

Anyway, you already delivered on your side of the contract, and since you`ll get nothing if this badly run company goes under, you may have to settle for part payment. So, having established there`s a bunch of you concerned, it might be wise to approach your boss and suggest he renegociate a bonus he can afford, before people feel compelled to get the Employment Standards folks involved.

Best of luck.

 

[tboy]

As for calling the employers 'welchers' and saying they promised something they couldn't deliver, maybe they "can't' deliver due to a cash flow problem due to the downturn in the economy.

Sure, you can force the issue and you can get your bonus, and all the other employees their bonus' too, but what good will that do if the company has to close its doors?

Look at it another way: if you press the issue and get your bonus, it amounts to possibly one month's rent. If you keep your job you get a year's wages. Is it really worth it?

I always fight my battles from a side of power, if you have everything to lose and nothing to gain, why fight?

 

[drstrangelove]

Also, remember there is "constructive dismissal" whereby an employer tries to make your life so uncomfortable (gives you nothing to do or makes your life a misery) that you will leave rather than stay around. This is the same as being dismissed and you are entitled to the same (in some cases more) payment as if you were let go.

True, but the legal fees to pursue this type of action would be much higher than the $400 that mmouse is reluctant to pay to collect his bonus.

 

[benstt]

OH, I don't know if you've ever received a bonus before, but be prepared to take it up the ass from RevCan. Bonus' are taxed at a much higher rate than your regular pay so if you're entitled to $2000.00, you will probably only end up with $1000.00 in your pocket. Even if you sue them for it and win, that is still considered a bonus and you'll still have to pay the hefty tax on it.

The tax is with-held at a high rate when your bonus is paid to you, but the bonus money will be treated the same as other salary at tax return time. It works out in the end. At least for me it does.

 

[tboy]

The tax is with-held at a high rate when your bonus is paid to you, but the bonus money will be treated the same as other salary at tax return time. It works out in the end. At least for me it does.

I can see that happening if you have plenty of deductions. I know when I was getting "bonus'" I was single with no deductions and never received any refunds so that extra that I paid out, stayed out.

 

[benstt]

I can see that happening if you have plenty of deductions. I know when I was getting "bonus'" I was single with no deductions and never received any refunds so that extra that I paid out, stayed out.

Sounds like they with-held an appropriate amount of tax then. If they with-held zero dollars, you'd end up paying the same amount, but in April instead.

The with-held tax is just an estimate, the real tax calcs are done on your return. And on the return, bonus money isn't treated separately, it is lumped in with regular salary on the T4. (In my experience, at least.)

 

[WhaWhaWha]

I have filed a claim

Approximately 10 years ago, I started and ended a 6-month contract on the same day, when my employer discovered I was a single parent in a get-to-know-you chat. Despite my declaration of availability to do the job my employer decided I wasn't worth the risk.

I filed a complaint of discrimination due to marital and family status. I was hired back a month later by a different department in the same company on a 2 year contract, which completed successfully. 10 years later, I am currently on another contract at that same place of employment.

 

[tboy]

WhaWha: You say you filed a complaint, but was it the action caused by that complaint that got you hired? I find it hard to believe that ANY action was taken by a government agency in 30 days lol.....

Also, I'm surprised your employer wasn't advised legally about voiding your contract. The reason contracts are signed is to prevent exactly what happened to you. The only way an employer can not honor a contract is if you broke one of the stipulations and or they paid you the full value of the contract.