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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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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. | 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. | 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. | |||
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. | 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. | ||
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== D. Limitation Periods == | == D. Limitation Periods == | ||
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, | 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. | 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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