Review and Investigation of Complaints - Act Part 10, Section 76

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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 outlines the responsibilities of the director regarding complaints received under the Employment Standards Act. 

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Text of Legislation

76. (1) Subject to subsection (2), the director must accept a complaint made under section 74.

(2) The director must refuse to accept a complaint if the complaint is not made within the time period under section 74 (3), (4) or (5), as applicable.

(3) On accepting a complaint under subsection (1), the director must review the complaint and decide whether any of the following circumstances apply:

(a) this Act does not apply to the complaint;

(b) the complaint is frivolous, vexatious or trivial or is not made in good faith;

(c) a proceeding relating to the subject matter of the complaint has been commenced before a court, tribunal, arbitrator or mediator;

(d) a court, tribunal or arbitrator has made a decision or award relating to the subject matter of the complaint;

(e) the dispute that caused the complaint may be dealt with under section 3 (7);

(f) the complaint has been resolved

(i) by way of a settlement agreement made under section 78,

(ii) by way of payment to the complainant of unpaid wages claimed by the complainant, or

(iii) in any other manner that the director considers to be satisfactory.

(4) If the director decides that none of the circumstances under subsection (3) apply, the director must investigate the complaint.

(5) If the director decides that any of the circumstances under subsection (3) apply, the director may

(a) refuse to investigate the complaint, or

(b) investigate the complaint.

(6) If the director decides at any time that the complaint may relate to an employee other than the employee who made the complaint, the director may

(a) refuse to investigate the complaint or stop or postpone investigating the complaint, and

(b) conduct a broader investigation that addresses the subject matter of the complaint.

(7) If the director conducts but does not complete the broader investigation under subsection (6) (b), or if that broader investigation does not resolve the issues raised in the complaint, the director must, subject to subsection (8), investigate the complaint.

(8) The director may stop or postpone investigating a complaint at any time if the director is satisfied that

(a) this Act does not apply to the complaint,

(b) the complaint is frivolous, vexatious or trivial or is not made in good faith,

(c) there is not enough evidence to prove the complaint,

(d) despite the director's attempt to arrange for the complainant's participation in a review or investigation or to obtain information from the complainant, the complainant failed to participate in the review or investigation or to provide information,

(e) a proceeding relating to the subject matter of the complaint has been commenced before a court, tribunal, arbitrator or mediator,

(f) a court, tribunal or arbitrator has made a decision or award relating to the subject matter of the complaint,

(g) the dispute that caused the complaint may be dealt with under section 3 (7), or

(h) the complaint has been resolved

(i) by way of a settlement agreement made under section 78,

(ii) by way of payment to the complainant of unpaid wages claimed by the complainant, or

(iii) in any other manner that the director considers to be satisfactory.

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Policy Interpretation

Section 76 sets out how the Director reviews complaints and decides whether they will be investigated or not, and also when investigations may be stopped.

The purposes of the Employment Standards Act include providing a fair and efficient dispute resolution process. While the Director is required to review all complaints, it would be inefficient to conduct full investigations of complaints that are filed out of time without good reason, where the Act does not apply, or where the issues have already been resolved.

The Director's review determines whether the criteria discussed below apply. Where those criteria do apply, the Director will usually decide not to investigate the complaint in the interests of fairness and efficiency.

Subsection (1)

The Director must accept and review a complaint that has been filed under section 74, subject to the exceptions outlined in this section.

Subsection (2)

If a complaint is not filed within the timelines set out in section 74(3) or (4), as appropriate, the Director cannot investigate the complaint. The only exception is if a complainant files an application with the Director, as described in section 74(5), and an extension to the time limit for filing a complaint is granted.

Subsection (3)

Once a complaint is accepted within the subsection (2) time limit, the Director must consider if any of the circumstances set out in this section apply to the complaint.

(a) This Act does not apply to the complaint.

Examples

• The Director cannot interpret or enforce a provision of a collective agreement
• The Director cannot remedy occupational health and safety issues, income tax issues or human rights issues
• The Director cannot resolve a complaint if the employer is under federal jurisdiction

(b) The complaint is frivolous, vexatious, trivial, or is not made in good faith. The purpose of this subsection is not to refuse or discontinue investigation of valid complaints. The objective is to allow the Director to prevent misuse or abuse of the legislation or the dispute resolution process.

Examples

• ​A complaint that has no serious purpose and is not likely to succeed: After attending a workplace party after hours, an employee requests payment of wages
• A complaint that is intended to harass, annoy, embarrass or cause financial cost in defending: An employee complains that an employer paid wages two days late, although the employer has never paid late before
• A complaint that is so minor or technical that it is not worth proceeding: An employee complains that one lunch break lasted 28 minutes rather than 30 as required by the Act
• A complaint that is motivated by unfairness or is intentionally inaccurate, exaggerated or misleading

(c) A person who made the complaint has begun another proceeding on the same matter. Another proceeding may include a human rights complaint or a court case.

(d) A final decision has been made regarding the same issue between the same parties by a court, tribunal or arbitrator.

(e) Disputes relating to the application, interpretation or operation of any of the provisions of the Act deemed to be incorporated into a collective agreement under sections 3(3) or (5) of the Act, or a provision specified in section 3(6) of the Act, must be resolved using the grievance procedure in the collective agreement. Where a collective agreement applies, the union and the grievance procedure apply. The Director cannot investigate complaints based on a worker's disagreement or dissatisfaction with the outcome of any grievance process.

(f) A complaint is resolved when it is withdrawn, when the employer pays amounts owing or the parties agree it is resolved. This may be demonstrated where:

(i) The parties have agreed to a settlement agreement facilitated by the Employment Standards Branch.

(ii) The money alleged to be owed in a complaint has been paid.

(iii) The Director may consider the dispute has ended in other circumstances, such as where there is a binding agreement releasing an employer from further liabilities, or where no wages are claimed and the Director has addressed the allegations through education. The Director has discretion to determine that a complaint has objectively been resolved, even if a party does not agree.

Subsection (4)

If a complaint is filed in time, and none of the factors in subsection (3) apply to the complaint, the Director must investigate the complaint.

Subsection (5)

If a complaint is filed in time, and if the Director finds that one or more of the factors in subsection (3) applies, the Director may choose whether or not to investigate that particular complaint. If any of those factors apply, the Director will generally not investigate the complaint.

Subsection (6)

If a complaint is filed alleging contraventions that do not relate to the employee who filed that complaint, or that apply to other employees as well, the Director may choose not to investigate that particular complaint or to postpone investigating that particular complaint. If they do, they must conduct a broader investigation into the allegations set out in the complaint.

Subsection (7)

If the broader investigation described in subsection (6) does not resolve the allegations raised by the employee who filed the complaint, the Director must then investigate the original complaint.

Subsection (8)

If the Director investigates a complaint and determines that any of the following factors apply to the complaint during that investigation, then the Director may stop or postpone investigating the complaint.

(a) This Act does not apply to the complaint.

Examples

• The Director cannot interpret or enforce a provision of a collective agreement
• The Director cannot remedy occupational health and safety issues, income tax issues or human rights issues
• The Director cannot resolve a complaint if the employer is under federal jurisdiction

(b) The complaint is frivolous, vexatious, trivial, or is not made in good faith. The purpose of this subsection is not to refuse or discontinue investigation of valid complaints. The objective is to allow the Director to prevent misuse or abuse of the legislation or the dispute resolution process.

Examples

• ​A complaint that has no serious purpose and is not likely to succeed: After attending a workplace party after hours, an employee requests payment of wages
• A complaint that is intended to harass, annoy, embarrass or cause financial cost in defending: An employee complains that an employer paid wages two days late, although the employer has never paid late before
• A complaint that is so minor or technical that it is not worth proceeding: An employee complains that one lunch break lasted 28 minutes rather than 30 as required by the Act
• A complaint that is motivated by unfairness or is intentionally inaccurate, exaggerated or misleading

(c) Neither the employer nor the employee provides the information necessary to determine whether the Act was contravened. The Director may penalize employers who fail to keep proper records as required by the Act.

(d) The Director has made reasonable efforts to contact a person who has made a complaint and to engage them in the initial review of the complaint or the investigation of the complaint, but the person who made the complaint has not participated or provided information.

(e) A person who made the complaint has begun another proceeding on the same matter. Another proceeding may include a human rights complaint or a court case.

(f) A final decision has been made regarding the same issue between the same parties by a court, tribunal or arbitrator.

(g) Disputes relating to the application, interpretation or operation of any of the provisions of the Act deemed to be incorporated into a collective agreement under sections 3(3) or (5) of the Act, or a provision specified in section 3(6) of the Act must be resolved using the grievance procedure in the collective agreement.

(h) A complaint is resolved when it is withdrawn, when the employer pays amounts owing or the parties agree it is resolved. This may be demonstrated where:

(i) The parties have agreed to a settlement agreement facilitated by the Employment Standards Branch.

(ii) The money alleged to be owed in a complaint has been paid.

(iii) The Director may consider the dispute has ended in other circumstances, such as where there is a binding agreement releasing an employer from further liabilities, or where no wages are claimed and the Director has addressed the allegations through education.

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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

Kyle W. Kruetzer, BC EST # D068/08
H.M. Tsang Co., Ltd., BC EST # D292/03
Jody L. Goudreau et al., BC EST # D066/98

Related sections of the Act or Regulation

ESA

• s.2, Purposes of this Act
• s.3, Scope of the Act
• s.74, Complaint and time limit
• s.82, No other proceedings
• s.118, Right to sue preserved

Court Decisions

Macaraeg v. E Care Contact Centers Ltd., 2008 BCCA 182, leave to appeal refused, [S.C.C.A. No. 293 (QL).
Karbalaeiali v. B.C. (Employment Standards), 2007 BCCA 553

Labour Relations Code