Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations
EMPLOYMENT STANDARDS ACT - PART 14 - GENERAL PROVISIONS
ESA Section 118 – Right to sue preserved
This section explains what legal options are available to a complainant, outside the Employment Standards Act.
118. Subject to section 82, nothing in this Act or the regulations affects a person's right to commence and maintain an action that, but for this Act, the person would have had the right to commence and maintain.
An employee who has the right to pursue a statutory claim through the director can still pursue another action, providing the director has not issued a determination on the same matter.
Right to Take Civil Action
The director enforces statutory rights created by the Employment Standards Act. Contractual rights are created by the employment agreement and can be enforced through the courts. Some contractual rights can be enforced through the Act because they represent agreed-to conditions of employment.
Restrictions on Civil Action
If there is an overlap between statutory and contractual claims, the employee must decide whether to pursue a claim through the courts or through the director. Under s.82 of the Act, an employee is prevented from starting or carrying on court proceedings on a matter once the director has issued a determination on the same matter, unless the employee has obtained the director's permission. Permission would not be granted unless there were very unusual circumstances.
An employee may split a claim into separate parts and pursue one part through the courts, and another part under the Act. The important points are:
· there should be no overlap between the two claims; and
· the director may decline to act on any portion of the claim that is before the courts.
Accepting a settlement or receiving money as a result of a voluntary payment or a determination under the Act may prevent an employee from subsequently pursuing court proceedings on the same matter, particularly if the employee has signed a release of claims against the employer as part of a settlement agreement.
Voluntary payment or adjudication of an Employment Standards Act complaint for compensation for length of service, which is wages under s.63 of the Act, is a different proceeding than a wrongful dismissal action in court. Individuals who wish to consider a wrongful dismissal action should seek independent legal advice. The Employment Standards Branch does not provide this advice.
Section 76 (2) (f) (g) allows the director to refuse to investigate a complaint or stop or postpone investigating a complaint if a proceeding relating to the subject matter of the complaint has been commenced or decided before a court, tribunal, arbitrator, or mediator.
Related sections of the Act or Regulation
- s.76, Investigation after or without a complaint
- s.82, No other proceedings
- s.110, Finality of tribunal’s decisions and orders
- s.116, Reconsideration of orders and decisions
- s.119, Extraprovincial certificates
- s.124, Limitation period
Judicial Review Procedure Act, [RSBC 1996] Chapter 241
Peter Z. Colak v. UV systems Technology Inc., 2007 BCCA 220