Can you contract out of Employment Standards?

The answer to this question is fairly clear. The Employment Standards Act, 2000 specifies that an employer, an employee, or their agents may not enter into an agreement that waives an employment standard. Any such agreement is considered void under the legislation. One example is a notice provision or termination clause in an employment contract that stipulates that an employee may receive less than what is provided for under the legislation.

By contrast, it is the application of this principle that can sometimes be murky. Such was the case in the Court of Appeal’s decision from earlier this year in Heller v. Uber Technologies Inc.

A key issue in this case was whether an arbitration clause in the driver services agreement between Uber and its drivers violated this principle. The arbitration clause stated “Any dispute, conflict or controversy howsoever arising out of or broadly in connection with or relating to this Agreement, including those relating to its validity, its construction or its enforceability, shall be first mandatorily submitted to mediation proceedings”.

The Uber driver in this case challenged the arbitration clause on the basis that it prevented him from seeking to have the Ministry of Labour determine whether he and other drivers were considered employees of Uber. Uber took the position that its drivers were precluded from commencing a complaint to the Ministry of Labour, relying upon the provisions of the arbitration clause. The Court of Appeal, however, did not accept Uber’s argument.

The Court of Appeal noted that an employment standard entails a benefit for an employee. This includes the right of an employee to make a complaint to the Ministry of Labour, provided that the employee has not already commenced a civil proceeding and is not a member of a trade union. The court pointed out that an arbitration did not constitute a civil proceeding. Thus, the right to make a complaint to the Ministry of Labour was considered an employment standard that could not be contracted out of by way of the arbitration clause.

In reaching this conclusion, the Court of Appeal reiterated and emphasized the principle that the Employment Standards Act, 2000 ought to be interpreted in a way that encourages employers to comply with the minimum requirements of the legislation, and in doing so extends protections to as many employees as possible.

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.