Remedies in Employment Law (9:VI): Difference between revisions

{{REVIEWED LSLAP | date= July 8, 2022}}

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'' (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].  

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.

A complainant may file their complaint with the Employment Standards Branch in one of three ways:  

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) 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.  

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).

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 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.

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.