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: http://www.labour.gov.bc.ca/esb/forms/pdf/complaint.pdf);
• filling in a form at the nearest Employment Standards Branch office; or
• submitting an online complaint form (available here: http://www.labour.gov.bc.ca/esb/forms/esb_comp.htm ).

The Director may refuse to investigate a complaint if it is not made in good faith or if there is insufficient evidence to support it. The complainant may request, in writing, that any identifying information gathered for the purpose of the investigation remain confidential. However, the Director may disclose information if disclosure is deemed necessary to the proceeding or in the public interest (s 75).

Most employment standards complaints are resolved through a process of education of the parties, mediation, and/or adjudication, but some are referred to investigation. The officer reviewing the case has the discretion to determine the approach taken. Breach of any section of the ESA may be a basis for an investigation. At the conclusion of an investigation, the Director will give their determination (their decision) based on the evidence given. The Director has the power to settle the claim in a variety of ways, including:

• arranging payment to the complainant;
• forcing compliance with the Act; or
• 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.

Penalties per offence are:

First Determination:	$500
Second Determination:	$2,500
Third Determination:	$10,000

Under Part 11 of the ESA, an officer or director of a corporation is personally liable for up to two months’ unpaid wages per employee if the officer or director held office when the wages were earned or were payable – however, officers or directors of a corporation are not personally liable on bankruptcy of the corporation (s 96(2)). Also, directors and officers may be considered a common employer and be held jointly and severally liable (s 95). If the business is sold, transferred, or continued after bankruptcy, the subsequent business may be considered a successor business and “the employment of an employee is deemed ... to be continuous and uninterrupted” (s 97).

Under the ESA (s 80), employers’ liability for wages (including payments for length of service upon termination) will only include those wages that became payable within the six months prior to the date of the complaint, or within the six 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 six 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 period of 30 months (two years, plus the six month limitation period). Similarly, employees may be able to recover wages that were entered into a time bank more than 6 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.

4. 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.

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”.The tribunal may dismiss an appeal without a hearing if the requirements are not met, or if payment of a possible appeal fee, set up by regulation, has not been made. There are provisions for an appeal fee to be charged but there is currently no fee, nor are there plans to charge one. 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.Small Claims Court For information on how to proceed with a claim in Small Claims Court, 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 involving termination of employment or payment of wages.For example, the ESA only requires an employer to pay one week’s wages per year of service notice to a

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