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 accepts and reviews every complaint. Circumstances where the director may exercise discretion to stop or postpone reviewing, mediating, investigating or adjudicating a complaint include:
a. The complaint was not filed within six months after the last day of employment, as set out in sections 74 (3) and (4) of the Act.
A complainant’s last day of employment is June 22. The six month period to file a complaint runs from June 23 to December 22.
b. This Act does not apply to the complaint.
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.
c. 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.
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.
d. The director normally requires a person to send a Self-Help Kit to an employer 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 nor the employee can provide 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.
f. 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.
g. The dispute has already been resolved in another proceeding.
h. 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 ss. 3(3) or 3(5) of the Act, or a provision specified in s.3(6) of the Act must be resolved using the grievance procedure in the collective agreement.
i. A dispute is resolved when a complaint is withdrawn, when the employer pays amounts owing or the parties agree it is resolved.
Employment Standards Tribunal Decisions
Kyle W. Kruetzer, BC EST D#068/08
H.M. Tsang Co., Ltd., BC EST # D292/03
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