Difference between revisions of "Remedies in Employment Law (9:VI)"
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== 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'' (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 | 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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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. | ||
== Provincial Small Claims Court == | == B. Provincial (Small Claims) Court == | ||
For information on how to proceed with a claim in Small Claims Court or the Civil Resolution Tribunal, see Chapter 20: Small Claims Court. | 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 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 | 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 | 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. | 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 | 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. | ||
== The BC Human Rights Tribunal == | == C. The BC Human Rights Tribunal == | ||
If an employee or potential employee has been discriminated against on the basis of one or more of the prohibited grounds, see Chapter 6: Human Rights, [[BC_Human_Rights_Code_(6:III)#C. The Complaint Process | Section III.C: The Complaint Process]] for information on how to proceed with a complaint. If the employee was terminated from their position based on one of the prohibited grounds, they may be able to recover lost wages and compensation for injury to dignity, feeling, and self respect at the Human Rights Tribunal. | If an employee or potential employee has been discriminated against on the basis of one or more of the prohibited grounds, see Chapter 6: Human Rights, [[BC_Human_Rights_Code_(6:III)#C. The Complaint Process | Section III.C: The Complaint Process]] for information on how to proceed with a complaint. If the employee was terminated from their position based on one of the prohibited grounds, they may be able to recover lost wages and compensation for injury to dignity, feeling, and self respect at the 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. | ||
== 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, there was formerly a six-year limitation period for pure economic loss arising from breach of contract (wrongful dismissal would qualify); this limitation period continues to apply for any wrongful dismissal claims that arose before June 1, 2013. For wrongful dismissals occurring on or after June 1, 2013, the new Limitation Act applies, and there is a two-year limitation period (See Limitation Act, SBC 2012, c 13). Section 124 of the ESA sets a limitation period of two years for any court action arising from an offence under the Act. | 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 was formerly a six-year limitation period for pure economic loss arising from breach of contract (wrongful dismissal would qualify); this limitation period continues to apply for any wrongful dismissal claims that arose before June 1, 2013. For wrongful dismissals occurring on or after June 1, 2013, the new Limitation Act applies, and there is a two-year limitation period (See Limitation Act, SBC 2012, c 13). Section 124 of the ESA sets a limitation period of two years for any court action arising from an offence under the Act. | ||