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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)
Revision as of 17:40, 16 August 2019
, 17:40, 16 August 2019→Provincial Small Claims Court
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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 he or she is 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 he or she is 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 preventing 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). 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 preventing 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). 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. | ||
