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

== B. Provincial Small Claims Court ==

For information on how to proceed with a claim in Small Claims Court, see [[Introduction to Small Claims (20:I) | 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 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 six months, thus the claimant may wish to pursue a remedy in Small Claims Court if he or she is owed more than six 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 '''no longer''' seek to directly enforce 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). 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 $32,000 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 he or she is 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.