Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations
EMPLOYMENT STANDARDS ACT - PART 11 - ENFORCEMENT
ESA Section 98 – Monetary penalties
This section outlines the circumstances under which an individual or corporation can be required to pay a monetary penalty and how that penalty must be imposed.
98. (1) In accordance with the regulations, a person in respect of whom the director makes a determination and imposes a requirement under section 79 is subject to a monetary penalty prescribed by the regulations.
(1.1) A penalty imposed under this section is in addition to and not instead of any requirement imposed under section 79.
(1.2) A determination made by the director under section 79 must include a statement of the applicable penalty.
(2) If a corporation contravenes a requirement of this Act or the regulations, an employee, officer, director or agent of the corporation who authorizes, permits or acquiesces in the contravention is also liable to the penalty.
(3) A person on whom a penalty is imposed under this section must pay the penalty whether or not the person
(a) has been convicted of an offence under this Act or the regulations, or
(b) is also liable to pay a fine for an offence under section 125.
(4) A penalty imposed under this Part is a debt due to the government and may be collected by the director in the same manner as wages.
Where the Director issues a determination under s.79 of the Act and imposes a requirement as a result of a contravention of the Act or the regulations, an escalating monetary penalty is mandatory, subject to s.98(2). The amount of the penalty is in accordance with the Employment Standards Regulation, s.29.
If a business operates at more than one location, and a contravention of the Act or Regulation resulting in a penalty occurs at one location, then a later contravention of the same provision of the Act at another location will not result in a higher penalty. Each location has its own penalty ladder subject to s.29(3) of the Employment Standards Regulation.
For purposes of this section, a franchise owner will not be held responsible for contraventions committed by other franchise owners.
The amount of the monetary penalty, as prescribed in s.29 of the Employment Standards Regulation is in addition to any amount ordered in a determination as a result of a contravention of the Act. The penalty imposed under this section is subject to s.81 of the Act.
When a penalty is imposed, the director must state the nature of the contravention and the date by which the penalty must be paid. (Refer to Section 81(c). of the Act.) A penalty under this section is subject to any right of appeal under Part 13 of the Act, Appeals.
Liability of Individuals
A penalty may also be imposed on an employee, officer, director, or agent of a corporation. Where an employee, officer, director, or agent has authorized, permitted, or acquiesced in a contravention of the Act, they may be liable for the company’s penalty.
“authorizes”: where a director or officer makes a decision or empowers a person to make decisions or authority to act on behalf of a corporation resulting in a contravention of the Act the director or officer is subject to the corporate penalty.
“permits”: Where a director or officer makes a decision or requires a person to act on behalf of a corporation resulting in a contravention of the Act, the director or officer is subject to the corporate penalty.
“acquiesces”: Where a director or officer knowingly consents or complies with a corporate decision resulting in a contravention of the Act the director or officer is subject to the corporate penalty.
If a corporation fails to comply with a Demand for Records a corporate determination including penalty may be issued and where there is conclusive evidence proving the officer, director, employee or agent acquiesces or authorizes or permits in the corporate contravention and a determination is issued naming any of these persons, it will include the corporate penalty.
The director will investigate each case on it own merits. Individuals will not be assessed these penalties where this money is collected from the corporation.
Where a determination naming an employee, officer, director, or agent as liable for a corporate contravention and the corporate penalty is imposed the determination will include the director’s reasons and supporting evidence for including the penalty and the parties named as liable will be provided the opportunity to appeal to the Tribunal.
Directors or Officers of Charities
Directors or officers of charities who do not receive remuneration other than out-of-pocket expenses are excluded from liability.
A person on whom a penalty is imposed must pay the penalty whether or not they have been convicted of an offence under the Act or regulation. Any penalty under this section is in addition to any fine the person may be liable for where there has been a contravention of Part 2 to 8 of the Act.
Where a determination is issued under s.79 for a contravention of the Act, and a penalty has been imposed in accordance with this section, the director may collect the penalty in the same manner as wages.
A penalty is not defined as wages in the Act, under s.1, “wages” and as such vacation pay is not payable on the penalty amount.
Clearing of the Record
If there has been no further contravention of the same section of the Act or Regulation for 3 years from the date of the determination last issued, employers will be considered to have a clear record and the penalty for another contravention of the section will be $500.
Employment Standards Tribunal Decisions
Global Plumbing, Heating and Gas Fitting Ltd., BC EST #102/11
Related sections of the Act or Regulation
- s 1, Definition, “determination”
- s.79, Determinations and consequences
- s.81, Notifying others of determination
- s.87, Lien for unpaid wages
- s.92, Seizure of assets
- s.95, Associated employers
- s.96. Corporate officer’s liability for unpaid wages
- s.112, Appeal of director’s determination
- s.113, Director’s determination may be suspended
- s.114, After an appeal is requested
- s.125, Offences