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

Jump to navigation Jump to search

Remedies in Employment Law (9:VI) (view source)

Revision as of 04:24, 9 June 2016

56 bytes removed ,  04:24, 9 June 2016
no edit summary
Line 62: Line 62:
Anyone who wishes to appeal a determination of the Director must make an application to the Employment Standards Tribunal, a separate body established under Part 12 of the Act, at the conclusion of an investigation (s 115). The request must be made within certain time limits, which depend on the manner in which the decision is served. If the decision is hand-served, faxed, or delivered electronically, an appeal must be filed within 21 days. If the decision is sent by registered  mail, an appeal must be filed within 30 days. After reviewing the decision, the Adjudicator of the Employment Standards Tribunal may confirm it, alter it, or refer it back to an officer. The appeal is decided based on the correctness of the Director’s determination.  
Anyone who wishes to appeal a determination of the Director must make an application to the Employment Standards Tribunal, a separate body established under Part 12 of the Act, at the conclusion of an investigation (s 115). The request must be made within certain time limits, which depend on the manner in which the decision is served. If the decision is hand-served, faxed, or delivered electronically, an appeal must be filed within 21 days. If the decision is sent by registered  mail, an appeal must be filed within 30 days. After reviewing the decision, the Adjudicator of the Employment Standards Tribunal may confirm it, alter it, or refer it back to an officer. The appeal is decided based on the correctness of the Director’s determination.  


Sections 112 and 114 of the ESA confine the grounds of appeal to the tribunal to situations where:  
Sections 112 and 114 of the ''ESA'' confine the grounds of appeal to the tribunal to situations where:  
*a) '''The Director erred in law:''' An error in law may encompass the interpretation of a particular statutory provision, or its application to the facts presented. It can also be used when the appellant feels the Director acted unreasonably, or without evidence.  
*a) '''The Director erred in law:''' An error in law may encompass the interpretation of a particular statutory provision, or its application to the facts presented. It can also be used when the appellant feels the Director acted unreasonably, or without evidence.  
*b) '''The Director failed to observe the principles of natural justice in making the determination:''' This ground of appeal encompasses a wide variety of circumstances such as bias on the part of the decision maker, procedural unfairness (refusing an adjournment without good reason), or when the appellant feels generally they have not been given the right to be heard (a right codified in s 77 of the Act). c)Evidence   has   become   available   that   was   not   available   at   the   time   the Determination was made: The new evidence must be material, in the sense that if the Director had been given the chance to review it the determination in whole or in part would have been different. Although the Act does not specifically allow a party to appeal the Director’s findings of fact, in certain cases the Director’s fact finding may be so flawed that it amounts to a legal error. Gemex Developments Corp v British Columbia (Assessor of Area #12– Coquitlam) (1998), 62 BCLR (3d) 354) defined an error of law as including instances where the Director was “acting on a view of the facts that could not reasonably have been entertained.” This test has been adopted in a number of tribunal decisions. Delsom Estate Ltd v British Columbia (Assessor of Area No 11 Richmond/Delta, [2000] BCJ No 331 (BCSC) restated the test as being “...that there is no evidence before the Board which supports the  finding made, in the sense that it is inconsistent with and contradictory to the evidence” and is “perverse or inexplicable”.The tribunal may dismiss an appeal without a hearing if the requirements are not met, or if payment of a possible appeal fee, set up by regulation, has not been made. There are provisions for an appeal fee to be charged but there is currently no fee, nor are there plans to charge one. 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. B.Small Claims Court For information on how to proceed with a claim in Small Claims Court, 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 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
*b) '''The Director failed to observe the principles of natural justice in making the determination:''' This ground of appeal encompasses a wide variety of circumstances such as bias on the part of the decision maker, procedural unfairness (refusing an adjournment without good reason), or when the appellant feels generally they have not been given the right to be heard (a right codified in s 77 of the Act).  
*c) '''Evidence has become available that was not available at the time the Determination was made:''' The new evidence must be material, in the sense that if the Director had been given the chance to review it the determination in whole or in part would have been different.  
 
Although the Act does not specifically allow a party to appeal the Director’s findings of fact, in certain cases the Director’s fact finding may be so flawed that it amounts to a legal error. ''Gemex Developments Corp v British Columbia (Assessor of Area #12– Coquitlam)'' (1998), 62 BCLR (3d) 354) defined an error of law as including instances where the Director was “acting on a view of the facts that could not reasonably have been entertained.” This test has been adopted in a number of tribunal decisions. ''Delsom Estate Ltd v British Columbia (Assessor of Area No 11 Richmond/Delta'', [2000] BCJ No 331 (BCSC) restated the test as being “...that there is no evidence before the Board which supports the  finding made, in the sense that it is inconsistent with and contradictory to the evidence” and is “perverse or inexplicable”.
 
The tribunal may dismiss an appeal without a hearing if the requirements are not met, or if payment of a possible appeal fee, set up by regulation, has not been made. There are provisions for an appeal fee to be charged but there is currently no fee, nor are there plans to charge one.  
 
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.  
 
== B. Small Claims Court ==
 
For information on how to proceed with a claim in Small Claims Court, 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 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
9-47
9-47
Retrieved from "https://wiki.clicklaw.bc.ca/index.php?title=Special:MobileDiff/29291"

Navigation menu