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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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Provincially regulated employees may still be able to seek reinstatement under other statutes such as the ''Worker’s Compensation Act'' or the ''Human Rights Code'' if their situation qualifies. | Provincially regulated employees may still be able to seek reinstatement under other statutes such as the ''Worker’s Compensation Act'' or the ''Human Rights Code'' if their situation qualifies. | ||
=== 1. Application === | === 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 Branch will deal only with complaints that have arisen within six months from the date of the complaint, if the complainant is still employed by the company. 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. | 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 Branch will deal only with complaints that have arisen within six months from the date of the complaint, if the complainant is still employed by the company. 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. | ||
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=== 2. The Employment Standards Branch Self-Help Kit === | === 2. The Employment Standards Branch Self-Help Kit === | ||
Complainants must first use a “Self-Help Kit” as a means of weeding out complaints that do not need to be filed. In the Kit, the claimant must first contact his or her employer with a written explanation for their claim and how much they want as compensation. The employer then has a chance to reply. If there is a still a conflict between the two, or the employer does not reply, the claimant can then file a complaint with the Employment Standards Branch. The Employment Standards Branch will generally not accept a complaint unless it has written proof that the complainant has tried to solve the problem using the Kit. In a limited number of circumstances, complainants do not first have to use the Kit. These exceptions include where the complaint is related to a leave provision of the ''ESA'' (e.g. pregnancy leave), or the complainant is a farm worker, textile worker, garment worker, or domestic worker. Links to the list of exceptions, and the self-help kit, | Complainants must first use a “Self-Help Kit” as a means of weeding out complaints that do not need to be filed. In the Kit, the claimant must first contact his or her employer with a written explanation for their claim and how much they want as compensation. The employer then has a chance to reply. If there is a still a conflict between the two, or the employer does not reply, the claimant can then file a complaint with the Employment Standards Branch. The Employment Standards Branch will generally not accept a complaint unless it has written proof that the complainant has tried to solve the problem using the Kit. In a limited number of circumstances, complainants do not first have to use the Kit. These exceptions include where the complaint is related to a leave provision of the ''ESA'' (e.g. pregnancy leave), or the complainant is a farm worker, textile worker, garment worker, or domestic worker. Links to the list of exceptions, and the self-help kit, found at: http://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/factsheets/filing-a-complaint. | ||
Complainants who have less than 30 days remaining until the end of the six month limitation period should first file their complaint with the Employment Standards Branch and then use the Self-Help Kit. | Complainants who have less than 30 days remaining until the end of the six month limitation period should first file their complaint with the Employment Standards Branch and then use the Self-Help Kit. | ||
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After completing the Self-Help Kit, the complainant may file their complaint with the Employment Standards Branch in one of three ways: | After completing the Self-Help Kit, the complainant may file their complaint with the Employment Standards Branch in one of three ways: | ||
*filling in a form and mailing or delivering it to the nearest Employment Standards Branch | |||
*filling in a form and mailing or delivering it to the nearest Employment Standards Branch; | |||
*filling in a form at the nearest Employment Standards Branch office; or | *filling in a form at the nearest Employment Standards Branch office; or | ||
*submitting an online complaint form | *submitting an online complaint form. | ||
Information on filing can be found at: http://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/info-forms/forms-complaint-submission/complaint-submission | |||
The Director may refuse to investigate a complaint if it is not made in good faith or if there is insufficient evidence to support it. The complainant may request, in writing, that any identifying information gathered for the purpose of the investigation remain confidential. However, the Director may disclose information if disclosure is deemed necessary to the proceeding or in the public interest (s 75). | The Director may refuse to investigate a complaint if it is not made in good faith or if there is insufficient evidence to support it. The complainant may request, in writing, that any identifying information gathered for the purpose of the investigation remain confidential. However, the Director may disclose information if disclosure is deemed necessary to the proceeding or in the public interest (s 75). | ||
Most employment standards complaints are resolved through a process of education of the parties, mediation, and/or adjudication, but some are referred to investigation. The officer reviewing the case has the discretion to determine the approach taken. Breach of any section of the ''ESA'' may be a basis for an investigation. At the conclusion of an investigation, the Director will give their determination (their decision) based on the evidence given. The Director has the power to settle the claim in a variety of ways, including: | Most employment standards complaints are resolved through a process of education of the parties, mediation, and/or adjudication, but some are referred to investigation. The officer reviewing the case has the discretion to determine the approach taken. Breach of any section of the ''ESA'' may be a basis for an investigation. At the conclusion of an investigation, the Director will give their determination (their decision) based on the evidence given. The Director has the power to settle the claim in a variety of ways, including: | ||
*arranging payment to the complainant; | *arranging payment to the complainant; | ||
*forcing compliance with the Act; or | *forcing compliance with the Act; or | ||
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=== 4. Appeals === | === 4. Appeals === | ||
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. (see ''Alsip v Top Rollshutters Inc. dba Talius'', 2016 BCCA 252, and ''Howard v Benson Group Inc. (The Benson Group Inc.)'', 2016 ONCA 256). | ||
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). | *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. | *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”. | 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”. For a summary of the law relating to judicial reviews under the Employment Standards Tribunal, see ''Cariboo Gur Sikh Temple Society (1979) v British Columbia (Employment Standards Tribunal)'', 2016 BCSC 1622. | ||
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. | 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. | ||