Employees in British Columbia are entitled to complain to the Director of Employment Standards when their employer does not provide the minimum standards required in the Employment Standards Act.
The Employment Standards Branch and Tribunal are tasked with upholding employee rights. This means that where possible, they will interpret the provisions of the Act generously in favour of employees.
The best way to avoid Employment Standards complaints is to know your obligations and ensure you are compliant with the requirements of the Act.
If an employee does make a complaint, the following roughly sets out the process the Employment Standards Branch will follow. Representatives of the Employment Standards Branch have some leeway to run cases as they see fit, so the process may differ case by case. The process is set out in Part 10 of the Employment Standards Act.
Employment Standards Branch
Employees may phone the Employment Standards Branch and speak with an agent to obtain information or advice about their rights. This service is also open to employers. Representatives of the Employment Standards Branch can advise on matters relating to the Employment Standards Act, but they are not competent to give any advice beyond the Act. For example, they cannot tell you about your obligations at common law. An employment lawyer is best able do that.
If an employee makes a complaint, its first stop will be the Employment Standards Branch. The complaint will be conducted by a “Delegate of the Director of Employment Standards”.
Employment Standards complaints are initially set down for mediation. Most claims are settled at the mediation stage. A Delegate will conduct a conference call between employer and employee, and will shuttle between both parties to try and resolve the complaint. The mediation is “without prejudice”, meaning what is said in the mediation cannot be used by the opposing party if the matter does not settle in mediation.
Complaints that do not settle in mediation are set for a hearing within seven weeks of the mediation date. The parties will be required to provide all relevant documents prior to the hearing date.
Most hearings are also conducted by conference call. A different Delegate, who was not involved in the mediation, will conduct the hearing. Each party will give evidence to support their case, and may be questioned by the other party. The Delegate will hear both parties’ evidence and make determinations about facts and credibility.
Delegates have broad powers to run complaints as they see fit. Instead of having a hearing, they may choose to run an investigation instead.
Once the Delegate has considered the facts presented, they will prepare a written determination setting out the facts they have accepted and the legal implications under the Act. Before the Delegate issues a determination, they may make preliminary assessments and invite comment or further evidence from the parties.
If the employer is ordered to pay money in the determination, that money must be forwarded to the Director of Employment Standards promptly. The Director will hold the money in trust pending potential appeals of the determination.
A party who disagrees with the determination, or the amount ordered to be paid, may appeal to the Employment Standards Tribunal. The Employment Standards Tribunal may deny the appeal, or if they accept the appeal, change the determination or send the matter back to the Delegate for a new determination.
Decisions of the Employment Standards Tribunal are reported. This means that the identities of the employee and employer, the facts of the complaint, and the result will become public record.
A party who disagrees with the Employment Standards Tribunal’s decision, or some part of it, may apply for reconsideration. In this case, the Employment Standards Tribunal may review its initial decision.
The Employment Standards regime is ultimately subject to review by judges. Once all the parties’ options in Employment Standards Branch and Tribunal have been exhausted, if the matter is still not resolved, a party can apply to the Supreme Court of British Columbia for judicial review of the Tribunal’s decision. Most complaints are resolved long before this stage, however, there is risk to the employer of being involved in a protracted an expensive legal dispute.
Stop complaints before they start by complying with the Act
Complying fully with the Act is the best way to prevent Employment Standards complaints. Most employers are not fully aware of all their obligations under the Act. Learn your obligations and how to comply with them and avoid costly and time-consuming complaints by speaking with one of our lawyers today.
The information provided on this page is a general overview of the complaint process set out in the BC Employment Standards Act. It should not be taken as legal advice. For answers to specific questions about your workplace obligations, contact EmployRight and speak with one of our employment lawyers.