Checklist for Employment Law (9:III): Difference between revisions

From Clicklaw Wikibooks
Jump to navigation Jump to search
No edit summary
mNo edit summary
Line 1: Line 1:
{{REVIEWED LSLAP | date= June 18, 2021}}
{{REVIEWED LSLAP | date= August 15, 2022}}
{{LSLAP Manual TOC|expanded = employment}}
{{LSLAP Manual TOC|expanded = employment}}


== A. Preliminary Matters ==
== A. Preliminary Matters ==


{{Checkbox}} '''Jurisdiction:''' Determine whether the employee falls within provincial or federal jurisdiction, and make a list of which statutes apply to the employee.  
{{Checkbox}} '''Jurisdiction:''' Determine whether the employee falls within provincial or federal jurisdiction and make a list of which statutes apply to the employee.  
*See [[Preliminary Matters for Employment Law (9:IV)#A. Determine Federal or Provincial Jurisdiction | Section IV.A: Determine Federal or Provincial Jurisdiction]]
*See [[Preliminary Matters for Employment Law (9:IV)#A. Determine Federal or Provincial Jurisdiction | Section IV.A: Determine Federal or Provincial Jurisdiction]]


Line 21: Line 21:
== C. Determine the Remedy ==
== C. Determine the Remedy ==


{{Checkbox}} Determine the employee’s legal remedy based on the legal basis for the employee’s complaint: A breach of the Employment Standards Act will lead to a claim at the Employment Standards Branch; a breach of the Human Rights Code will lead to a complaint at the Human Rights Tribunal; and a breach of the employment contract, or one of its implied terms, will lead to a claim in Small Claims Court (for claims under $35,000 as of June 1, 2017) BC Supreme Court (for claims over $35,000 as of June 1, 2017), or the Civil Resolution Tribunal (for claims $5,000 or under).  As of June 1, 2017, with a number of exceptions, civil claims of up to $5000 will no longer be dealt with in Small Claims Court – instead, they will be resolved in B.C.’s online Civil Resolution Tribunal.   
{{Checkbox}} Determine the employee’s legal remedy based on the legal basis for the employee’s complaint: A breach of the Employment Standards Act will lead to a claim at the Employment Standards Branch; a breach of the Human Rights Code will lead to a complaint at the Human Rights Tribunal; and a breach of the employment contract, or one of its implied terms, will lead to a claim in Small Claims Court (for claims under $35,000 as of June 1, 2017) BC Supreme Court (for claims over $35,000 as of June 1, 2017), or the Civil Resolution Tribunal (for claims $5,000 or under).  As of June 1, 2017, with several exceptions, civil claims of up to $5000 will no longer be dealt with in Small Claims Court – instead, they will be resolved in B.C.’s online Civil Resolution Tribunal.   
*See [[Remedies in Employment Law (9:VI) | Section VI: Remedies]].  
*See [[Remedies in Employment Law (9:VI) | Section VI: Remedies]].  
*See [[Introduction to Small Claims (20:I) | Chapter 20: Small Claims]].
*See [[Introduction to Small Claims (20:I) | Chapter 20: Small Claims]].
Line 42: Line 42:
| '''Civil Resolution Tribunal'''
| '''Civil Resolution Tribunal'''
| '''Small Claims Court'''
| '''Small Claims Court'''
| '''Supreme Court'''
| '''BC Supreme Court'''
|-
|-
| '''Filing Costs'''
| '''Filing Costs'''
Line 52: Line 52:
|-
|-
| '''Maximum Awards'''
| '''Maximum Awards'''
| No maximum dollar amount, but generally award limited to amounts owed for past 12 months only - See ESA s.80
| No maximum dollar amount, but generally award limited to amounts owed for past 12 months only (extended collection may be possible for vacation pay owing) - See ESA s.80
| No maximum
| No maximum
| $5,000
| $5,000
Line 60: Line 60:
| '''Type of Claim'''
| '''Type of Claim'''
| Statutory entitlements in the ESA (i.e. minimum wage, overtime, vacation pay, etc.)
| Statutory entitlements in the ESA (i.e. minimum wage, overtime, vacation pay, etc.)
| Discrimination in employment or hiring
| Discrimination in employment or hiring or dismissal
| Any term express or implied in the contract; wrongful dismissal
| Any term express or implied in the contract; wrongful dismissal
| Any term express or implied in the contract; wrongful dismissal
| Any term express or implied in the contract; wrongful dismissal

Revision as of 17:47, 15 August 2022

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 15, 2022.



A. Preliminary Matters

Jurisdiction: Determine whether the employee falls within provincial or federal jurisdiction and make a list of which statutes apply to the employee.

Unionized or Non-Unionized: Determine whether the employee is working in a union environment, and if so, whether the employment relationship is governed by a collective agreement, and whether the employee is in the bargaining unit covered by the collective agreement.

Employee or Contractor: Determine whether the worker is an actual “employee” or an “independent contractor”.

B. Determine the Issue

Read through the common employment law issues and determine which issue(s) the employee is experiencing.

C. Determine the Remedy

Determine the employee’s legal remedy based on the legal basis for the employee’s complaint: A breach of the Employment Standards Act will lead to a claim at the Employment Standards Branch; a breach of the Human Rights Code will lead to a complaint at the Human Rights Tribunal; and a breach of the employment contract, or one of its implied terms, will lead to a claim in Small Claims Court (for claims under $35,000 as of June 1, 2017) BC Supreme Court (for claims over $35,000 as of June 1, 2017), or the Civil Resolution Tribunal (for claims $5,000 or under). As of June 1, 2017, with several exceptions, civil claims of up to $5000 will no longer be dealt with in Small Claims Court – instead, they will be resolved in B.C.’s online Civil Resolution Tribunal.

Determine the claim’s limitation date. Ensure that you file the appropriate application on time. If you have missed the limitation date, look at what options you may have for late filing.

Determine whether there are any written contracts, employment policies, or other written terms of employment that apply to the worker, including any release agreements the employee may have signed.

Consider other strategies and tips offered.

Forums for Employment Law Disputes
Employment Standards Branch Human Rights Tribunal Civil Resolution Tribunal Small Claims Court BC Supreme Court
Filing Costs None None $100 for claims up to $3,000; $150 for claims over $3,000 (waivers may be available) $100 for claims up to $3,000; $156 for claims over $3,000 $200 to file, plus additional costs for applications and trials exceeding 3 days
Maximum Awards No maximum dollar amount, but generally award limited to amounts owed for past 12 months only (extended collection may be possible for vacation pay owing) - See ESA s.80 No maximum $5,000 $35,000 (as of June 1, 2017) No maximum
Type of Claim Statutory entitlements in the ESA (i.e. minimum wage, overtime, vacation pay, etc.) Discrimination in employment or hiring or dismissal Any term express or implied in the contract; wrongful dismissal Any term express or implied in the contract; wrongful dismissal Any term express or implied in the contract; wrongful dismissal


© Copyright 2024, The Greater Vancouver Law Students' Legal Advice Society.