Complaint and Time Limit - Act Part 10, Section 74

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Contents:

Summary
Text of Legislation
Policy Interpretation
Former Legislation and Policy Interpretation (prior to August 15, 2021)
Related Information

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Summary

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

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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 alleged contravention.

(5) On application, the director may extend the time to deliver a complaint under this section, including making an extension after the time to deliver has expired, if the director is satisfied that

(a) special circumstances exist or existed that preclude or precluded the delivering of a complaint within the applicable time period required under subsection (3) or (4), and

(b) an injustice would otherwise result.

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Policy Interpretation

Subsection (1)

Complaints must be in writing and may be filed by:

• a current employee (at any time)
  • If employment is ongoing, wage recovery is generally limited to the wages that became payable in the 12 months before the date the complaint was filed. If the issues continue after filing your initial complaint, you can file a second complaint no later than 12 months after the initial complaint was filed to capture an additional recovery period.
• a terminated employee (within 6 months after the last day of employment)
• someone on behalf of or helping the employee (such as a lawyer or advocate); or
• a “third party” (someone not claiming an entitlement under the Act on their own behalf, but rather providing information generally about an employer's potential non-compliance with the Act)

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 includes delivery by email or fax. The most efficient way to file a complaint with the Branch is through its online complaint form. A written complaint may also 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, email address and phone number of the person making the complaint
• The identity of the complainant, if a representative or third party
• The correct name, address, email address and phone number of the employer
• 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.

Get a section-by-section interpretive Guide to the Employment Standards Act and Regulation to help provide a clear understanding of the law. This guide is also known as the Interpretation Guidelines Manual (IGM).

Subsection (3)

An employee whose employment has terminated

Any terminated employee must file a complaint within 6 months after their last day of employment.

A “month” is calculated from a day in one month to a day numerically corresponding to that day in the following month.

Example

The last day of employment was February 14. Therefore, the complaint must be delivered on or before August 15.

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 10. The complaint must be delivered on or before October 11. However, if October 11th is a Sunday, the time for filing the complaint is extended to the next business day - normally Monday, October 12. If Monday, October 12 is Thanksgiving Day, however, the time for filing a complaint is extended until Tuesday, October 13.

Section 76 of the Act provides that the Director must refuse to proceed with a complaint that is filed outside the time limits set out in Section 74.

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 Friday, April 16, 2021. The employee does not return to work by the end of working hours on the Friday of the 13th week (July 16, 2021), 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, 2021. The complaint must be delivered on or before January 17, 2022.

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)

Subsection (5)

The director may exercise their discretion to extend the time limit for filing a complaint on application by the complainant. Although this extension can be granted even after the time limit for filing the complaint has expired, the director strongly enforces time limits in accordance with Section 2 - Purposes of this Act ("fair and efficient procedures for resolving disputes").

For the director to consider extending the time limit, the complainant must make an application explaining why the complaint was filed late and providing any supporting evidence.

The director will consider the reasons why the complaint wasn't filed within 6 months, and any objective evidence showing what prevented the complainant from filing at any time during the 6-month period. The information in the application must satisfy the director that:

• Special circumstances exist or existed which preclude or precluded the delivering of a complaint within the applicable time period, and
• An injustice would result if the time limit isn't extended

While each case is determined on its own merits and circumstances, there is a high legal bar to pass for a time limit extension.

Special circumstances

"Special circumstances" means factors outside the ordinary. It usually doesn't include:

• The fact that it may have been physically, mentally or emotionally challenging, stressful or difficult to find out about the complaint process and file a complaint
• Strategically not filing a complaint in case payments from an employer were jeopardized
• Misunderstanding or not knowing about the complaint process or the time limit
• Trying to negotiate a resolution with the employer
• Reluctance to make a complaint
• Limited time or financial resources
• Limited English language skills
• Being sick

Injustice

"Injustice" means more than the fact that a complainant may not receive the wages they earned from their employer. The director accepts that in setting a 6-month time limit for a complaint, the legislature knew and intended that some workers with valid complaints submitted outside the time limit would not be able to receive the services of the Employment Standards Branch. An injustice under this section must be something other than not receiving wages or allowing a non-compliant employer to fail to pay wages.

The director considers both of these factors in light of the purposes of the Act, and views the timely filing of a complaint as a critical element of a fair and efficient process.

Subsection (5) contains both a procedural and evidentiary burden:

• A complainant must apply for an extension of the time limit
• The application must include some objective evidence of both factors: special circumstances and injustice

If you've been notified that your complaint was filed outside the time limit and you can prove both factors, after reading the information and examples above, reply to the notice and request to apply for an extension of the time limit.

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Former Legislation and Policy Interpretation

A transitional provision in section 40 of Bill 8 – 2019: Employment Standards Amendment Act, 2019 provides that complaints received and not resolved before the date the changes to this section came into force (August 15, 2021) are subject to the former text of this section, given and interpreted below:

Transitional provisions connect former legislation and new amendments. Find out more about recent ​transitional provisions and consequential amendments to the Employment Standard Act and Regulation.

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Related Information

Employment Standards Tribunal Decisions

Schermerhorn, BC EST D#205/98 (in calculating the time limit for filing, the last day of employment is not included)

The following are examples of decisions where the late complaint was not accepted by the Director (upheld on appeal):

Mary Zhao (Re) 2024 BCEST 63 (employee had health issues but insufficient evidence to show how this precluded them from filing a complaint within the 6-month time period)

Munchang Choi (Re) 2024 BCEST 107 (employee had health issues; family health issues; stress but could not demonstrate how they were precluded from filing a complaint within the 6-month time period)

Ramtin Lalehdashti (Re) 2023 BCEST 112 (employee had health issues)

Giannini, 2017 BCEST 61 (medical issues without supporting evidence)

Calla Miller (Re) 2023 BCEST 25 (employee was dealing with family issues and unaware of time limit under the Act)

Devinder Singh Sodhi (Re) 2024 BCEST 36 (employee failed to file complaint in time because they were negotiating with the employer; left the country; needed assistance)

Koh, BC EST D#008/12 (limited English skills)

Koontz, 2019 BCEST 96 (cognitive or emotional issues arising from injury, illness or life events without supporting evidence)

Uvacik, 2020 BCEST 66 (continued negotiations for payment between parties after the end of employment)

Bradley MacIver (Re) 2022 BCEST 59 (employee failed to file a complaint within the time limit because they were pursuing their complaint in other jurisdictions)

Wittich, 2020 BCEST 131 (employee was unaware of entitlements under the Act)

Yudhvir Singh (Re) 2021 BCEST 93 (employee was unaware of entitlements under the Act)

Related sections of the Act or Regulation

ESA

• s.1, Definition, “Insolvency Act”
• s.1, Definition, “temporary layoff”
• s.62, Definition, “week of layoff”
• ESA Part 2 – Hiring Employees
• ESA Part 3 – Wages, Special clothing and records
• ESA Part 4 – Hours of Work and Overtime
• ESA Part 5 – Statutory Holidays
• ESA Part 6 – Leaves and Jury Duty
• ESA Part 7 – Annual Vacation
• ESA Part 8 – Termination of Employment
• s.75, If complainant requests identity be kept confidential
• s.76, Investigations
• s.77, Opportunity to respond
• s.80, Limit on amount of wages required to be paid
• s.82, No other proceedings
• s.83, Employee not to be mistreated because of complaint or investigation
• s.84, Director’s investigative powers and protections
• s.85, Entry and inspection powers
• s.101, Publication of violators’ names
• s.127(1) & (2), Power to make regulations

ESR

• s.47, Complaints of contraventions of this regulation