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Difference between revisions of "Remedies in Employment Law (9:VI)"
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Remedies in Employment Law (9:VI) (view source)
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{{REVIEWED LSLAP | date= August 1, 2023}} | |||
{{LSLAP Manual TOC|expanded = employment}} | {{LSLAP Manual TOC|expanded = employment}} | ||
== A. The Employment Standards Branch == | == 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 [[{{PAGENAME}}#B. Small Claims Court | section V.B: Small Claims Court]]. | 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 [[{{PAGENAME}}#B. Small Claims Court | section V.B: Small Claims Court]] and Chapter 20: Small Claims. | ||
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''. | 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'' ( | In ''WG McMahon Canada Ltd v Mendonca'' (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 they 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 [http://www.bcest.bc.ca 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. | Although the ''ESA'' also allows for reinstatement as a possible remedy, there are no published decisions in which it has actually been ordered. | ||
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=== 1. Application and Limitation Periods=== | === 1. Application and Limitation Periods=== | ||
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 ''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 limitation period for an ESA complaint is six months. If still employed by the company, an employee should bring a complaint within six months of the event, and 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 | :'''NOTE:''' Time during which an employee was not working because they were on sick leave, pregnancy leave, Workers’ Compensation benefits, etc. is nonetheless considered part of the term of employment. | ||
=== 2. Filing a Claim with the Employment Standards Branch === | === 2. Filing a Claim with the Employment Standards Branch === | ||
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*requiring a remedy or cessation of the action (ss 78-79). | *requiring a remedy or cessation of the action (ss 78-79). | ||
The Director also has the power to help parties settle a complaint and reach a binding settlement agreement that may be filed in Supreme Court for enforcement (s 78). Section 29 of the ''ES Regulation'' provides an augmented penalty provision that grants the Employment Standards Branch more power to enforce the Act. The penalty provision is also used to enforce the offences listed in section 125 of the ''ESA''. | The Director also has the power to help parties settle a complaint and reach a binding settlement agreement that may be filed in Supreme Court for enforcement (s 78). | ||
Section 29 of the ''ES Regulation'' provides an augmented penalty provision that grants the Employment Standards Branch more power to enforce the Act. The penalty provision is also used to enforce the offences listed in section 125 of the ''ESA''. | |||
Penalties per offence are: | Penalties per offence are: | ||
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Under the ESA (s 80), employers’ liability for wages (including payments for length of service upon termination) can now include those wages that became payable within the twelve months prior to the date of the complaint, or within the twelve months prior to the date of the employee’s termination – whichever is earlier. However, because some benefits become payable long after they were earned, an employee may be able to recover those benefits that they earned more than twelve months prior to the date of the complaint or date on which they were terminated. For example, in some cases vacation pay is not payable until two years after it is earned; in these cases, an employee could potentially recover vacation pay that was earned over a longer period than the twelve month collection limitation period. Similarly, employees may be able to recover wages that were entered into a time bank more than twelve months prior to the date of the complaint. | Under the ESA (s 80), employers’ liability for wages (including payments for length of service upon termination) can now include those wages that became payable within the twelve months prior to the date of the complaint, or within the twelve months prior to the date of the employee’s termination – whichever is earlier. However, because some benefits become payable long after they were earned, an employee may be able to recover those benefits that they earned more than twelve months prior to the date of the complaint or date on which they were terminated. For example, in some cases vacation pay is not payable until two years after it is earned; in these cases, an employee could potentially recover vacation pay that was earned over a longer period than the twelve month collection limitation period. Similarly, employees may be able to recover wages that were entered into a time bank more than twelve months prior to the date of the complaint. | ||
'''NOTE:''' Employers cannot terminate, suspend, or discipline employees because they have filed, or may file, a complaint (s 83). The Branch can order an employee’s reinstatement for contravention of this section and for violations of s 8 and Part 6. | :'''NOTE:''' Employers cannot terminate, suspend, or discipline employees because they have filed, or may file, a complaint (s 83). The Branch can order an employee’s reinstatement for contravention of this section and for violations of s 8 and Part 6. | ||
=== 3. Appeals === | === 3. Appeals === | ||
Anyone who wishes to appeal a determination of the Director must make an application to the Employment Standards Tribunal, a separate body established under Part 12 of the Act, at the conclusion of an investigation (s 115). The request must be made within certain time limits, which depend on the manner in which the decision is served. If the decision is hand-served, faxed, or delivered electronically, an appeal must be filed within 21 days. If the decision is sent by registered mail, an appeal must be filed within 30 days. After reviewing the decision, the Adjudicator of the Employment Standards Tribunal may confirm it, alter it, or refer it back to an officer. The appeal is decided based on the correctness of the Director’s determination. (see ''Alsip v Top Rollshutters Inc. dba Talius'', 2016 BCCA 252, and ''Howard v Benson Group Inc. (The Benson Group Inc.)'', 2016 ONCA 256). | Anyone who wishes to appeal a determination of the Director must make an application to the Employment Standards Tribunal, a separate body established under Part 12 of the Act, at the conclusion of an investigation (s 115). The request must be made within certain time limits, which depend on the manner in which the decision is served. If the decision is hand-served, faxed, or delivered electronically, an appeal must be filed within 21 days. If the decision is sent by registered mail, an appeal must be filed within 30 days. After reviewing the decision, the Adjudicator of the Employment Standards Tribunal may confirm it, alter it, or refer it back to an officer. The appeal is decided based on the correctness of the Director’s determination. (see ''Alsip v Top Rollshutters Inc. dba Talius'', 2016 BCCA 252, https://canlii.ca/t/gs477, and ''Howard v Benson Group Inc. (The Benson Group Inc.)'', 2016 ONCA 256, https://canlii.ca/t/gp8v7). | ||
Sections 112 and 114 of the ''ESA'' confine the grounds of appeal to the tribunal to situations where: | Sections 112 and 114 of the ''ESA'' confine the grounds of appeal to the tribunal to situations where: | ||
:a) '''The Director erred in law:''' An error in law may encompass the interpretation of a particular statutory provision, or its application to the facts presented. It can also be used when the appellant feels the Director acted unreasonably, or without evidence. | |||
:b) '''The Director failed to observe the principles of natural justice in making the determination:''' This ground of appeal encompasses a wide variety of circumstances such as bias on the part of the decision maker, procedural unfairness (refusing an adjournment without good reason), or when the appellant feels generally they have not been given the right to be heard (a right codified in s 77 of the Act). | |||
:c) '''Evidence has become available that was not available at the time the Determination was made:''' The new evidence must be material, in the sense that if the Director had been given the chance to review it the determination in whole or in part would have been different. | |||
Although the Act does not specifically allow a party to appeal the Director’s findings of fact, in certain cases the Director’s fact finding may be so flawed that it amounts to a legal error. ''Gemex Developments Corp v British Columbia (Assessor of Area #12– Coquitlam)'' (1998), 62 BCLR (3d) 354) defined an error of law as including instances where the Director was “acting on a view of the facts that could not reasonably have been entertained.” This test has been adopted in a number of tribunal decisions. ''Delsom Estate Ltd v British Columbia (Assessor of Area No 11 Richmond/Delta'', [2000] BCJ No 331 (BCSC) restated the test as being “...that there is no evidence before the Board which supports the finding made, in the sense that it is inconsistent with and contradictory to the evidence” and is “perverse or inexplicable”. For a summary of the law relating to judicial reviews under the Employment Standards Tribunal, see ''Cariboo Gur Sikh Temple Society (1979) v British Columbia (Employment Standards Tribunal)'', 2016 BCSC 1622. | Although the Act does not specifically allow a party to appeal the Director’s findings of fact, in certain cases the Director’s fact finding may be so flawed that it amounts to a legal error. ''Gemex Developments Corp v British Columbia (Assessor of Area #12– Coquitlam)'' (1998), 62 BCLR (3d) 354) defined an error of law as including instances where the Director was “acting on a view of the facts that could not reasonably have been entertained.” This test has been adopted in a number of tribunal decisions. ''Delsom Estate Ltd v British Columbia (Assessor of Area No 11 Richmond/Delta'', [2000] BCJ No 331 (BCSC) restated the test as being “...that there is no evidence before the Board which supports the finding made, in the sense that it is inconsistent with and contradictory to the evidence” and is “perverse or inexplicable”. For a summary of the law relating to judicial reviews under the Employment Standards Tribunal, see ''Cariboo Gur Sikh Temple Society (1979) v British Columbia (Employment Standards Tribunal)'', 2016 BCSC 1622. | ||
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If the employee is not satisfied with the decision of the Employment Standards Tribunal, they can seek judicial review of the decision; however, this must be done in BC Supreme Court. Employees should speak to a lawyer if they wish to pursue this possibility. | If the employee is not satisfied with the decision of the Employment Standards Tribunal, they can seek judicial review of the decision; however, this must be done in BC Supreme Court. Employees should speak to a lawyer if they wish to pursue this possibility. | ||
== B. Provincial Small Claims Court == | == B. Provincial (Small Claims) Court == | ||
For information on how to proceed with a claim in Small Claims Court, see | For information on how to proceed with a claim in Small Claims Court or the Civil Resolution Tribunal, see Chapter 20: Small Claims Court. | ||
The Small Claims approach can often yield better results than claims filed with the Employment Standards Branch, particularly for cases | The Small Claims approach can often yield better results than claims filed with the Employment Standards Branch, particularly for cases involving termination of employment. For example, the ESA only requires an employer to pay one week’s wages per year of service notice to a maximum of 8 weeks for dismissal without just cause, whereas a common law award could extend to as much as 24 months’ wages. The Employment Standards Branch is also only able to award back-pay of up to twelve months, thus the claimant may wish to pursue a remedy in Small Claims Court if they are owed more than twelve months’ back pay, and you determine there is a contractual claim to these funds. It might be in the employee’s best interest to pursue certain claims through the Employment Standards Branch and others in Small Claims Court. However, keep in mind that civil court will not rule on a matter that is to be decided by the Branch. | ||
Please note that employees may | Please note that employees may be prevented from directly enforcing rights under the ESA in civil court, and must instead use the Employment Standards Branch to enforce these rights (''Macaraeg v E Care Contact Centres Ltd.'', 2008 BCCA 182, https://canlii.ca/t/1wrdg). However, many of the interests protected by the ESA have parallel common law (contractual) remedies as well. A significant exception to this is overtime pay: employees have a contractual right to receive their normal hourly pay for all hours they work, but they can only make a claim at the Employment Standards Branch if they wish to receive 1.5 or 2 times their normal hourly rate for their overtime hours (an exception to this is if their employment contract specifically sets out that they will receive a higher rate for overtime pay, in which case this contractual right can be enforced in court). Each particular case should be reviewed fully before determining in which forum to proceed. | ||
It is important to note that different stages of a dispute may appear in different forums. A finding that there was no just cause for termination through an Employment Standards hearing is not grounds for estoppel of an employer arguing just cause as a defence to a wrongful dismissal claim through civil court; see ''Moore v. Instow Enterprises Ltd.'', 2021 BCSC 930, https://canlii.ca/t/jg044. | |||
When naming the defendant in Small Claims Court, the employee should sue the body with which the contract of employment was made, unless | Also note that Small Claims Court only has jurisdiction for claims above $5,000 and up to $35,000. Employees with claims over $35,000 must either abandon the excess amount of the claim, or proceed to BC Supreme Court. Employees should consult a lawyer before proceeding in BC Supreme Court, as it can be quite complicated and costly. Employees with claims $5,000 or under may be required to pursue their claim through the Civil Resolution Tribunal. | ||
When naming the defendant in Small Claims Court, the employee should sue the body with which the contract of employment was made, unless they are alleging fraud or induced breach of contract – in which case, consider joining the shareholders or directors of the company. The employee may have to sue the parent company and the subsidiary if the parent company does the hiring, paying, and terminating. | |||
== C. The BC Human Rights Tribunal == | == C. The BC Human Rights Tribunal == | ||
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In most cases, the employee should choose one of these two options, based on which would provide the most compensation. For low-income employees who were employed for a short period of time, the Human Rights Tribunal can often provide greater compensation. However, in some cases where the employee has worked for the employer for a particularly long time before being terminated, or where the employer has demonstrated particularly egregious conduct, the employee may have better success in Small Claims Court or BC Supreme Court where they may be able to receive a larger severance award, and possibly punitive damages. | In most cases, the employee should choose one of these two options, based on which would provide the most compensation. For low-income employees who were employed for a short period of time, the Human Rights Tribunal can often provide greater compensation. However, in some cases where the employee has worked for the employer for a particularly long time before being terminated, or where the employer has demonstrated particularly egregious conduct, the employee may have better success in Small Claims Court or BC Supreme Court where they may be able to receive a larger severance award, and possibly punitive damages. | ||
It is possible to have the employee’s job reinstated by making a claim under the ''Human Rights Code''. This is a significant remedy in itself, and it can also be used to incentivize a former employer to make a fair settlement offer, as they often do not wish for the employee to return. | It is theoretically possible to have the employee’s job reinstated by making a claim under the ''Human Rights Code''. This is a significant remedy in itself, and it can also be used to incentivize a former employer to make a fair settlement offer, as they often do not wish for the employee to return. However, in practice the Human Rights Tribunal does not order reinstatement, so be sure to advise employees about the extreme unlikelihood of the reinstatement remedy. | ||
== D. Limitation Periods == | == D. Limitation Periods == | ||
If a client wishes to file a complaint with the Employment Standards Branch, there is a six | If a client wishes to file a complaint with the Employment Standards Branch, there is a six month limitation period from the last day of employment to file a claim (ESA s 74). | ||
Applications to the B.C. Human Rights Tribunal must be made within one year of the alleged contravention or the last day of employment (HRC s 22). | |||
In the courts, there is a two-year limitation period (See ''Limitation Act'', SBC 2012, c 13) for filing a wrongful dismissal claim. Section 124 of the ESA sets a limitation period of two years for any court action arising from an offence under the Act. | |||
Note that in cases where an employer has provided working notice of dismissal, the limitation period for wrongful dismissal claims likely start when working notice is provided, not on the last day of employment. See ''Bailey v. Milo-Food & Agricultural Infrastructure & Services Inc''. 2017 ONCA 1004, https://canlii.ca/t/hpd4z. | |||
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