Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations

EMPLOYMENT STANDARDS ACT - PART 10 - COMPLAINTS, INVESTIGATIONS AND DETERMINATIONS

ESA Section 74 – Complaint and time limit


Contents:

Summary
Text of Legislation
Policy Interpretation
Related Information


Summary

This section explains who may complain, how the complaint must be presented and the time-frame the complaint must be made within. 


Text of Legislation

74. (1) An employee, former employee or other person may complain to the director that a person has contravened

(a) a requirement of Parts 2 to 8 of this Act, or

(b) a requirement of the regulations specified under section 127 (2) (l).

(2) A complaint must be in writing and must be delivered to an office of the Employment Standards Branch.

(3) A complaint relating to an employee whose employment has terminated must be delivered under subsection (2) within 6 months after the last day of employment.

(3.1) Subsection (3) applies to an employee whose employment is terminated following a temporary layoff and, for that purpose, the last day of the temporary layoff is deemed to be the last day of employment referred to in subsection (3).

(4) A complaint that a person has contravened a requirement of section 8, 10 or 11 must be delivered under subsection (2) within 6 months after the date of the contravention.


Policy Interpretation

In most circumstances, the Employment Standards Branch requires a person to use a Self-Help Kit to attempt to resolve a dispute before the Branch will proceed further with a complaint under the Act.

For information on how to use the Self-Help Kit, as well as other information pertaining to the Act, refer to:

  • Employment Standards Branch Website: www.labour.gov.bc.ca/esb; or
  • Employment Standards Branch toll free information line: 1-800-663-3316 or 250-612-4100 in Prince George or outside of B.C.

A Self-Help Kit can be picked up at any Employment Standards Branch office in B.C.

Under certain circumstances, the Employment Standards Branch will accept complaints where a Self-Help Kit has not been used.

Some examples are as follows :

  • The complainant is under the age of 19 ;
  • The complaint alleges a contravention of the Part 6 leave provisions of the Act (pregnancy leave, parental leave, family responsibility leave, bereavement leave, compassionate care leave, reservists' leave or jury duty) ;
  • The complainant would have difficulty using the Kit because of language or comprehension difficulties;
  • The complainant believes the employer may be insolvent;
  • Landlord has locked employer’s doors;
  • The complainant has provided information that the employer is removing, or may remove, assets;
  • The complainant is a farm worker, textile or garment worker, or domestic; or
  • The complainant has already sent a letter to an employer requesting resolution of an issue(s) under the Act.

If you believe unusual circumstances apply to you, please provide those circumstances to the local Employment Standards Branch office in your area.

Insolvency and Bankruptcy

The Employment Standards Branch cannot recover wages on behalf of an employee if the company is bankrupt.

  • Where an employer is bankrupt, an employee, or their representative, as the case may be, must contact the Trustee in Bankruptcy. They can provide advice, including how to file a Proof of Claim with the Trustee. Employees who are covered under a collective agreement must contact their union for assistance in recovering wages.
  • In cases of insolvency (not related to bankruptcy), such as rent distress, or removal of assets, the director will accept complaints from an employee. Employees who are covered under a collective agreement must contact their union for assistance in recovering wages.

Subsection (1)

Complaints must be in writing and may be filed by:

  • a current employee (at any time)
  • a terminated employee (within 6 months after the last day of employment)
  • someone on behalf of the employee (such as a lawyer); or
  • a “third party”

Complaints may relate to:

(a) Employment Standards Act

  • Part 2 – Hiring Employees
  • Part 3 – Wages, Special clothing and records
  • Part 4 – Hours of Work and Overtime
  • Part 5 – Statutory Holidays
  • Part 6 – Leaves and Jury Duty
  • Part 7 – Annual Vacation
  • Part 8 – Termination of Employment

(b) Employment Standards Regulation

  • Any requirement of the Employment Standards Regulation. (Refer to s.127(2)(l) of the Act)
  • Employment Standards Regulation s.47 states the following sections of the Regulation can be the subject of a complaint:

    s.6 - Duties of farm labour contractors

    s.14 – Maximum room and board rates for domestics

    s.18(2) – Minimum wage – farm workers (requirement to display notice)

    s.22 – Rest periods for residential care workers

    s.23 – Overtime for farm workers

    s.35(2) – Resident caretakers (requirement to display caretaker’s schedule)

Subsection (2)

A written complaint may be filed by the complainant by visiting an office of the Employment Standards Branch and completing the form provided, or by forwarding a letter to any branch office. This also includes delivery of an electronic version or a faxed copy.

To deal with complaints, the director should have at least the following information:

  • the full name, address, phone number, and Social Insurance Number of the person making the complaint
  • the correct name, address, and phone and fax number of the employer, and the location at which the work was performed
  • the nature of the claim
  • supporting documentation such as:
    • statement reflecting the actual hours and days for which wages are claimed
    • pay statements issued by the employer
    • the amount of wages claimed to be owed
    • in the case of NSF cheques, a copy of the cheque
    • in the case of vacation pay, the period for which vacation pay is claimed
    • a copy of the Record of Employment (if one was issued)
    • an outline of the circumstances which prompted the claim
  • date of hire, date of termination, rate of pay, and the nature of work performed

For locations of the Employment Standards Branch offices, visit here.

The Employment Standards Branch provides a printed brochure of the provisions of the Act called, Guide to the Employment Standards Act. A listing of Employment Standards Branch Offices is also included in the Guide.

Individual copies of the Guide are available at any Branch office and Government Agents’ office.

Subsection (3)

An employee whose employment has terminated

Any terminated employee must file a complaint within 6 months after their last day of employment. No formal or legal action can be taken on behalf of those people who bring their complaints to the director's attention after this time limit.

The Act does not provide for exceptions to the time limits in s.74(3).

A “month” is defined in the Interpretation Act as a period calculated from a day in one month to a day numerically corresponding to that day in the following month, less one day.

Example

The last day of employment was February 14, 2007. The time for filing a complaint starts on February 15, 2007. Therefore, the complaint must be delivered no later than August 14, 2007.

If the last day for filing a complaint falls on a non-business day or a holiday, the time for filling the complaint is extended to the next business day.

Example

The last day of employment was April 6, 2007. The time for filing a complaint starts on April 7, 2007. The complaint must be delivered by October 6, 2007. However, since October 6th is a Saturday, the time for filing the complaint is extended to the next business day. Since Monday, October 8, 2007 is Thanksgiving Day, the time for filing a complaint is extended until Tuesday, October 9, 2007.

Subsection (3.1)

An employee whose employment is terminated following a temporary layoff

When a “temporary layoff” as defined in section 1 of the Act, is exceeded, this is deemed to be a termination under the Act. For purposes of this Section, the last day of the temporary layoff, is deemed to be the last day of work.

Example

An employee is laid off at the end of work on Wednesday, April 16, 2002. The employee does not return to work by the end of working hours on the Wednesday of the 13th week (July 16, 2002), therefore, the temporary layoff is exceeded and the employee is considered to be terminated. The last day of work for purposes of filing a complaint would be six months from July 16, 2002. The complaint must be delivered no later than January 16, 2003.

Subsection (4)

Complaints under Part 2 of the Act – Hiring Employees

A complaint must be filed within 6 months of an alleged contravention of:

  • Part 2, Section 8, No false representations
  • Part 2, Section 10, No charge for hiring or providing information (to prospective employees)
  • Part 2, Section 11, No fees to other persons (helping to find employment)

Related Information

Employment Standards Tribunal Decisions

Schermerhorn, BC EST D#205/98;

Related sections of the Act or Regulation

ESA

ESR

Other

See Guide to the Employment Standards Act

See Working In British Columbia

See Employment Standards Factsheets

Interpretation Act

ESB Information Line 1-800-663-3316

Factsheets

Collective Agreements and the Employment Standards Act

Enforcement Measures and Penalties

Filing a Complaint

Minimum Wage

Employment Standards Self-Help Kit – Information for Employers