Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations
EMPLOYMENT STANDARDS ACT - PART 10 - COMPLAINTS, INVESTIGATIONS AND DETERMINATIONS
ESA Section 76 – Investigations
This section outlines the responsibilities of the director regarding complaints received under the Employment Standards Act.
76. (1) Subject to subsection (3), the director must accept and review a complaint made under section 74.
(2) The director may conduct an investigation to ensure compliance with this Act and the regulations, whether or not the director has received a complaint.
(3) The director may refuse to accept, review, mediate, investigate or adjudicate a complaint or may stop or postpone reviewing, mediating, investigating or adjudicating a complaint if
(a) the complaint is not made within the time limit specified in section 74 (3) or (4),
(b) this Act does not apply to the complaint,
(c) the complaint is frivolous, vexatious or trivial or is not made in good faith,
(d) the employee has not taken the requisite steps specified by the director in order to facilitate resolution or investigation of the complaint,
(e) there is not enough evidence to prove the complaint,
(f) a proceeding relating to the subject matter of the complaint has been commenced before a court, a tribunal, an arbitrator or a mediator,
(g) a court, a tribunal or an arbitrator has made a decision or an award relating to the subject matter of the complaint,
(h) the dispute that caused the complaint may be dealt with under section 3 (7), or
(i) the dispute that caused the complaint is resolved.
The director must accept and review a complaint that has been filed under s.74 of the Act, subject to the exceptions outlined in this section. If the director is satisfied that a complainant has first used the Employment Standards Self-Help Kit the director will then accept and review a written complaint to decide if the matter should be mediated, adjudicated or investigated. The exceptions to the required use of the kit are noted in s.74 of this Interpretation Guideline Manual
The director is not limited to reacting to complaints, and can take whatever initiatives are considered advisable in order to obtain compliance with the Act. The director’s role is to:
- promote consistent application and interpretation of the Act and Regulation
- promote voluntary compliance
- promote open communication between the Branch, employer and employees
- maximize efficient use of Branch resources
- encourage proactive consultation and education
The director is not obliged to accept, review, mediate, investigate or adjudicate every complaint. Circumstances where the director can exercise such discretion and also stop or postpone reviewing, mediating, investigating or adjudicating a complaint include:
a. The complaint was not filed within 6 months, as set out in ss.74 (3) (3.1) and (4) of the Act.
b. This Act does not apply to the complaint.
The complainant wants the director to enforce a seniority provision of a collective agreement.
The complainant wants the director to remedy issues relating to smoking in the workplace.
The employer is exempt from the Act because the business is under federal jurisdiction.
c. The complaint is frivolous, vexatious, trivial, or not made in good faith.
Frivolous: At a workplace party after hours, an employee tending bar requests payment of wages.
Vexatious: Years later a complainant demands payment for a few minutes each day for time spent between clocking in and starting the shift.
Trivial: A complaint is made that a lunch break lasted 29 ¾ minutes rather than 30 as required by the Act. The determination of triviality is objective; it does not involve the merits or motives of a complainant.
Not in Good Faith: An employee is convicted of embezzling from an employer and later files a claim. The determination of acting not in good faith is subjective, such as the complainant having the intent to defraud or to seek unconscionable advantage.
d. The director normally requires a person to use a Self-Help Kit to attempt to resolve a dispute without government intervention before the Branch will accept a complaint under the Employment Standards Act. Under certain circumstances the Employment Standards Branch will accept a complaint where a Self-Help Kit has not been used. For a list of circumstances in which the director will not require the use of a Self-Help Kit, please see s.74 of this Interpretation Guideline Manual.
e. Neither the employer or the employee can provide the information necessary to determine the amount of wages owing. The director can remedy non-payment of overtime only where there is evidence as to the actual hours of work. However, the director may penalize employers who fail to keep proper records as required by the Act.
f. A person who made the complaint has begun another proceeding on the same matter. A proceeding includes a small claims court case.
g. The dispute has already been resolved in another proceeding. The director is not a court of appeal for adverse outcomes in other forums.
h. The resolution of disputes relating to the application, interpretation or operation of any of the“deemed provisions” under ss. 3(3) or 3(5) of the Act, or a provision specified in s.3(6) of the Act remains with the grievance procedure in the collective agreement or in s.84(3) of the Labour Relations Code. Enforcement is not through the provisions of the Employment Standards Act.
i. A dispute is resolved to the satisfaction of the person who filed the complaint (the complaint is considered withdrawn).
Employment Standards Tribunal Decisions
Kyle W. Kruetzer, BC EST D#068/08
Related sections of the Act or Regulation
- 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
Macaraeg v. E Care Contact Centers Ltd., 2008 BCCA 182, 77 BCLR (4th) 205, leave to appeal refused, [S.C.C.A. No. 293 (QL).
Labour Relations Code