Remedies in Employment Law (9:VI): Difference between revisions
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Remedies in Employment Law (9:VI) (view source)
Revision as of 20:51, 21 August 2024
, 21 August 2024→B. Provincial (Small Claims) Court
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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 | The Small Claims approach can often get better results than claims filed with the Employment Standards Branch, particularly for cases involving termination of employment. However, civil court will not rule on a matter that is to be decided by the Branch. | ||
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. | |||
It is important to note that different stages of a dispute may appear in different forums. A finding that there was no just cause for termination through an Employment Standards hearing is not grounds for estoppel of an employer arguing just cause as a defence to a wrongful dismissal claim through civil court; see ''Moore v. Instow Enterprises Ltd.'', 2021 BCSC 930, https://canlii.ca/t/jg044. | It is important to note that different stages of a dispute may appear in different forums. A finding that there was no just cause for termination through an Employment Standards hearing is not grounds for estoppel of an employer arguing just cause as a defence to a wrongful dismissal claim through civil court; see ''Moore v. Instow Enterprises Ltd.'', 2021 BCSC 930, https://canlii.ca/t/jg044. | ||
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 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. | 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. |