Complaint and Time Limit - Act Part 10, Section 74


Contents:

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

Note: Subsection 5 only applies to complaints filed on or after August 15, 2021.

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.


Policy Interpretation

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, and phone 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.

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, 2020. Therefore, the complaint must be delivered no later than August 14, 2020.

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, 2020. The complaint must be delivered by October 10, 2020. However, since October 10th is a Saturday, the time for filing the complaint is extended to the next business day. Since Monday, October 12, 2020 is Thanksgiving Day, the time for filing a complaint is extended until Tuesday, October 13, 2020.

Section 76 of the Act provides that the Director may 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 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)

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:

 

Text of Legislation and Policy Interpretation prior to August 15, 2021

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

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, and phone 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.

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, 2020. Therefore, the complaint must be delivered no later than August 14, 2020.

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, 2020. The complaint must be delivered by October 10, 2020. However, since October 10th is a Saturday, the time for filing the complaint is extended to the next business day. Since Monday, October 12, 2020 is Thanksgiving Day, the time for filing a complaint is extended until Tuesday, October 13, 2020.

Section 76 of the Act provides that the Director may 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 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)

 

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.


Related Information

Employment Standards Tribunal Decisions

Schermerhorn, BC EST D#205/98;

Related sections of the Act or Regulation

ESA

ESR