Remedies in Employment Law (9:VI)

A. The Employment Standards Branch

The Employment Standards Branch is the only forum an employee can go to if they have a complaint arising from a breach of the ESA. If the complaint is instead regarding a contractual issue, see section V.B: Small Claims Court.

The ESA established the Employment Standards Branch to deal with complaints and to disseminate information about the Act to both employees and employers. The Employment Standards Branch is responsible for informing employers and employees of their rights under the ESA, and for administrating all disputes arising under the Act. The Employment Standards Branch’s Industrial Relations Officers and Employment Standards Officers are trained to interpret the ESA and to assist both employers and employees with problems arising under the Act. Employees should be referred to the Employment Standards Branch if they have a complaint arising under the ESA.

In WG McMahon Canada Ltd v Mendonca (16 September 1999), BCEST Decision No 386/99, the Employment Standards Tribunal set forth the “make whole remedy”, which permits the employee to receive compensation instead of reinstatement. The employee is essentially “made whole” financially by way of a compensation order, such that the employee would be in the same economic position he or she would have been in had the infraction not occurred. This is an extraordinary remedy but one which allows for significant compensation. The above case can be located on the Employment Standards Tribunal website.

Although the ESA also allows for reinstatement as a possible remedy, there are no published decisions in which it has actually been ordered.

Provincially regulated employees may still be able to seek reinstatement under other statutes such as the Worker’s Compensation Act or the Human Rights Code if their situation qualifies.

1. Application

The ESA gives the Director of Employment Standards power to investigate complaints made under the Act. The complaint must be made in writing and within certain time limits. The Branch will deal only with complaints that have arisen within six months from the date of the complaint, if the complainant is still employed by the company. If the complainant is no longer employed with the defendant company, the complaint must be filed within six months of the termination date (s 74). When an employee is terminated after a temporary layoff, the last day of the temporary layoff is deemed to be their last day of employment for the purpose of calculating the six-month limitation period. If this six-month time period has elapsed, there may still be an action in Small Claims Court.

NOTE: Time during which an employee was not working because he or she was on sick leave, pregnancy leave, Workers’ Compensation benefits, etc. is nonetheless considered part of the term of employment.

2. The Employment Standards Branch Self-Help Kit

Complainants must first use a “Self-Help Kit” as a means of weeding out complaints that do not need to be filed. In the Kit, the claimant must first contact his or her employer with a written explanation for their claim and how much they want as compensation. The employer then has a chance to reply. If there is a still a conflict between the two, or the employer does not reply, the claimant can then file a complaint with the Employment Standards Branch. The Employment Standards Branch will generally not accept a complaint unless it has written proof that the complainant has tried to solve the problem using the Kit. In a limited number of circumstances, complainants do not first have to use the Kit. These exceptions include where the complaint is related to a leave provision of the ESA (e.g. pregnancy leave), or the complainant is a farm worker, textile worker, garment worker, or domestic worker. Links to the list of exceptions, and the self-help kit, can be found on the Employment Standards Branch’s Filing a Complaint fact sheet.

Complainants who have less than 30 days remaining until the end of the six month limitation period should first file their complaint with the Employment Standards Branch and then use the Self-Help Kit.

3.Filing a Claim with the Employment Standards Branch

After completing the Self-Help Kit, the complainant may file their complaint with the Employment Standards Branch in one of three ways:

• filling in a form and mailing or delivering it to the nearest Employment Standards Branch (available here: htp://www.labour.gov.bc.ca/esb/forms/pdf/complaint.pdf);
• filling in a form at the nearest Employment Standards Branch office; or