Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations
EMPLOYMENT STANDARDS ACT - PART 2 - HIRING EMPLOYEES
ESA Section 8 – No False Representations
This section outlines the employer’s responsibility to properly represent potential employees about employment opportunities.
8. An employer must not induce, influence or persuade a person to become an employee, or to work or to be available for work, by misrepresenting any of the following:
(a) the availability of a position,
(b) the type of work,
(c) the wages, or
(d) the conditions of employment.
This section is a pre-hiring provision which says that an employer must not misrepresent any of four specific matters regarding prospective employment: the availability of a position, the type of work, the wages or the working conditions.
For the purposes of this section, a misrepresentation can be words or actions that are not in accordance with the facts or a statement made to deceive or mislead.
It is not necessary to show that the misrepresentation was intentional. It must be shown that the untruthful statement(s) had a bearing on the employment contract and influenced the party to accept the employment. The employee must show that he or she suffered a loss because of the misrepresentation.
The director encourages employers and employees to confirm the job offer and its conditions in writing before the start date to avoid any misunderstanding.
An employee does not have to refuse the work in order to make a complaint under this section; however, if the terms and conditions are substantially different from those initially offered by the employer, the employee should make his or her objections known to the employer and the director as soon as possible. The remedy for contravening this section is a “make whole” remedy, which means the employer will be required to compensate the employee in such a way as to put him or her back in the same position as if the contravention had not occurred. Under s. 79(2) of the Act, the employer may be required to:
- hire the person and pay any lost wages;
- reinstate a person and pay any lost wages;
- pay a person compensation instead of reinstatement; and/or
- pay for reasonable and actual out of pocket expenses.
The determination will include an escalating monetary penalty, subject to s.98.
Mary responds to a newspaper ad with a leading retailer advertising a position is available for an office manager. She applies for the position and is offered the job, to commence in three weeks’ time. She provides her current employer with two week’s notice informing them that she has accepted another job. Mary moves her residence to be closer to her new job. Before she is scheduled to start work she receives a letter advising her that regretfully the employer has decided her qualifications were not adequate after all and it has hired someone else.
This is a contravention of s.8 because the availability of the position was misrepresented.
Employment Standards Tribunal Decisions
TLC West Inc.; EST #D074/97
Jeff Parsons; BC EST #D110/00
John Shaddick; BC EST #D029/09
Related sections of the Act or Regulation