Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations - clone

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

ESA Section 79 – Determinations and consequences 


Contents:

Summary
Text of Legislation
Policy Interpretation
Related Information


Summary

This section explains the actions the director may take if a person has contravened the Act. 


Text of Legislation

79. (1) If satisfied that a person has contravened a requirement of this Act or the regulations, the director may require the person to do one or more of the following:

(a) comply with the requirement;

(b) remedy or cease doing an act;

(c) post notice, in a form and location specified by the director, respecting

(i) a determination, or
(ii) a requirement of, or information about, this Act or the regulations;

(d) pay all wages to an employee by deposit to the credit of the employee's account in a savings institution;

(e) employ, at the employer's expense, a payroll service for the payment of wages to an employee;

(f) pay any costs incurred by the director in connection with inspections under section 85 related to investigation of the contravention.

(2) In addition to subsection (1), if satisfied that an employer has contravened a requirement of section 8 or 83 or Part 6, the director may require the employer to do one or more of the following:

(a) hire a person and pay the person any wages lost because of the contravention;

(b) reinstate a person in employment and pay the person any wages lost because of the contravention;

(c) pay a person compensation instead of reinstating the person in employment;

(d) pay an employee or other person reasonable and actual out of pocket expenses incurred by him or her because of the contravention.

(3) In addition to subsection (1), if satisfied that an employer has contravened section 39, the director may require the employer to limit hours of work of employees to the hours or schedule specified by the director.

(4) The director may make a requirement under subsection (1), (2) or (3) subject to any terms and conditions that the director considers appropriate.

(5) The director must serve an employer with notice of a requirement imposed under subsection (1), (2) or (3), including any terms and conditions imposed under subsection (4).

(6) A person on whom the director imposes a requirement under this section must comply with that requirement.

(7) If the director requires a person to pay costs referred to in subsection (1) (f), the amount required to be paid is a debt due to the government and may be collected by the director in the same manner as wages.

(8) If satisfied that the requirements of this Act and the regulations have not been contravened, the director must dismiss a complaint.


Policy Interpretation

Subsection (1)

Where the director is satisfied that there has been a contravention of the Act or the regulations, and the parties have been unable or unwilling to reach a settlement agreement under s.78 of the Act, the director may issue a decision, called a “determination”.

If it is found that the employer has contravened the Act or the regulations and a determination is issued under this section, a mandatory escalating penalty will be issued in addition to any compensation owed to the employee, subject to s.98 of the Act. The amount of the penalty will be determined in accordance with s.29 of the Employment Standards Regulation.

In the determination, the director may require the person to do one or more of the following:

  • Comply with the Act
  • Cease from doing the act causing the contravention
  • Post a notice as required (See also s.72. Variances)
  • Remedy the contravention; which may include:

*   paying all wages owing to the employee(s) which may include paying wages by deposit to an employee ’s account in a savings institution

*   employ a payroll service (at their expense) to determine the amount owing; and pay the wages owing to an employee

*   pay any costs incurred by the director in the course of the investigation under s. 85. Entry and inspection powers.

Subsection (2)

Where an employer has contravened a requirement of:

Section 8

No false representations

Section 83

Employee not to be mistreated because of complaint or investigation

Part 6

Leaves and Jury Duty


the director may in addition to subsection (1) require the employer to:

  • hire a person and pay lost wages
  • reinstate a person and pay lost wages
  • pay a person compensation instead of reinstating employment
  • pay an employee or other person reasonable and actual out-of-pocket expenses incurred by them (not including the cost of obtaining legal advice or retaining legal counsel).

The director, based on the circumstances of each individual case, may require an employer to hire or reinstate a person and pay lost wages and other compensation. In short, the director may create a “make whole” solution to the contravention, that is, placing the employee in the same position as if the contravention had not occurred.

Reinstatement is rarely appropriate as the relationship is usually too damaged for reinstatement to be successful. Therefore, to create a “make whole” solution to a contravention of these provisions, the director considers the following

  • wages lost; which may include wages from previous employer or due to missing another employment opportunity
  • recovery of reasonable out-of-pocket expenses caused by the contravention and the search for employment. Out-of-pocket expenses does not include the cost of obtaining legal advice, or of retaining legal counsel.

Subsection (3)

Where the director is satisfied that that there has been a contravention of s.39 of the Act the director may issue a determination that imposes certain limits on the employees’ hours of work.

Under s.81(2) where a determination has been issued under this section limiting hours of work, an employer must display a copy of the determination in each workplace where it can be read by affected employees.

Subsection (4)

Where a determination has been issued under subsections (1), (2), or (3) above, the directors may impose any terms and conditions that she considers appropriate.

Subsection (5)

Where the director imposes a requirement under subsection (4), the employer must be served with a copy of the determination setting out any term or condition imposed. (See s.122.)

Subsection (6)

Any person on whom the director imposes a requirement, must obey the terms or conditions as required.

Subsection (7)

Where a person is required to pay costs that the director has incurred as a result of an inspection relating to investigation of the contravention (commonly referred to as an “audit”), the cost is considered to be a debt to the government and can be collected under this section in the same manner as outstanding wages.

Subsection (8)

The director has no option but to dismiss a complaint when an investigation or adjudication hearing proves there has not been a contravention of either the Employment Standards Act or the Regulation.


Related Information

Related sections of the Act or Regulation

ESA

ESR

Other

See Employment Standards Factsheets

Factsheet

Complaint Resolution and the Employment Standards Act

Enforcement Measures and Penalties