Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations
EMPLOYMENT STANDARDS ACT - PART 13 - APPEALS
ESA Section 116 – Reconsideration of orders and decision
This section explains when a tribunal may reconsider orders and decisions.
116. (1) On application under subsection (2) or on its own motion, the tribunal may
(a) reconsider any order or decision of the tribunal, and
(b) confirm, vary or cancel the order or decision or refer the matter back to the original panel or another panel.
(2) The director or a person served with an order or a decision of the tribunal may make an application under this section.
(2.1) The application may not be made more than 30 days after the date of the order or decision.
(2.2) The tribunal may not reconsider an order or decision on the tribunal's own motion more than 30 days after the date of the decision or order.
(3) An application may be made only once with respect to the same order or decision.
(4) The director and a person served with an order or a decision of the tribunal are parties to a reconsideration of the order or decision.
The Act intends that Adjudicators' appeal decisions are "final and conclusive" therefore the Tribunal will only reconsider a decision in exceptional circumstances. Reconsideration is not a right to which a party is automatically entitled; rather it is at the discretion of the Tribunal. The Tribunal uses its discretion with caution in order to ensure:
- finality of its decisions
- efficiency and fairness of the appeal system; and
- fair treatment of employers and employees
The reconsideration process was not meant to allow parties another opportunity to re-argue their case. However, the Tribunal may reconsider a decision if the Adjudicator failed to comply with the principles of natural justice or made a serious mistake in applying the law, or some significant new evidence has become available that would have led the Adjudicator to a different decision.
The Director of Employment Standards, or a person served with an order or a decision of the tribunal, may make a request that the Tribunal reconsider a decision. The request must be made in writing and must include an explanation of the grounds for the request.
After receiving a reconsideration request, the Tribunal will inform all parties of the request and may invite them to make submissions in response. There will be a final opportunity for the party making the reconsideration request to reply to those submissions before the Tribunal evaluates the reconsideration request and the submissions.
The Tribunal will decide whether the request raises sufficient reasons to justify a reconsideration of the decision.
If a party is not satisfied with the outcome of a reconsideration request it may apply to the Supreme Court of British Columbia for a judicial review of the Reconsideration Decision pursuant to the Judicial Review Procedure Act. The Administrative Tribunals Act provides that a request for judicial review must be made within 60 days of the date the reconsideration decision is issued.
Subsections (2.1) and (2.2)
An application for reconsideration must be made within 30 days after the date of the order or decision. If the tribunal decides to reconsider a decision on its own motion, it must begin the process within 30 days after the date it made the order or decision.
A party may apply only once for a reconsideration with respect to a decision. If more than one party requests a reconsideration of the same decision, the requests will be dealt with together.
The Director of Employment Standards and everyone who was served with the original tribunal order or decision is a party to a reconsideration proceeding, whether it is the result of an application by one of the parties or commenced by the tribunal on its own motion.
Employment Standards Tribunal decisions
Milan Holdings Inc., BC EST #D313/98
Valoroso BC EST #RD046/01
SAII BC EST #RD094/14
Related sections of the Act or Regulation
- s.112, Right to appeal a director's determination
- s.114, After an appeal is requested
- s.115, Tribunals orders
Judicial Review Procedure Act, [RSBC 1996] Chapter 241
Administrative Tribunals Act, [SBC 2004] Chapter 245
See Employment Standards Tribunal website at www.bcest.bc.ca