Investigations

The investigator

An investigator is a neutral third party who aims for an efficient, fair and effective investigation. They view issues objectively and do not advocate for employers or employees. They need to:

• Understand the complaint and identify which issues are covered by the Act
• Educate the parties on how the Act applies and inform them of their rights and obligations
• Help the parties understand whether they may owe or be owed wages
• Help the parties reach a fair and effective voluntary resolution
• Provide a reasonable opportunity for the parties to give information
• Seek out the information needed to investigate the issues
• Share information with the parties to ensure everyone has the appropriate access

Above all, investigators need to gather enough information to conclude a complaint. An investigation proceeds best when both parties engage in the process.

Before an investigation

Before an investigation, Employment Standards needs to confirm that:

• The complaint is within our jurisdiction
• The complaint includes an issue under the Act

If both of these aspects are confirmed, the investigator works with the parties to clarify the issue and understand their positions.

Some complaints may involve money and others may not. If the complaint involves money, the investigator determines whether the parties agree that wages are owed.

Education

Early in the investigation, the investigator educates the parties about the application of the Act. Typically, the investigator explains what the Act says and how it may apply to the situation.

After this education, parties will have the tools and knowledge they need in order to decide how to proceed.

Review of records

If a complaint isn't resolved by education, a more formal review of records begins. Early in the complaint process, Employment Standards advises parties to gather relevant records. At this stage, they may be asked to provide these documents and other details about the complaint. The investigator:

• Determines what information could be relevant to the complaint
• Makes reasonable (but not unlimited) efforts to get that information

An investigation may involve the examination of evidence provided by the parties. During an investigation, the investigator may also:

• Review allegations from a complaint
• Make requests for more information
• Review related documents
• Talk with others who may have information about the issues, like a supervisor or a witness
• Gather more evidence needed to resolve the complaint

Voluntary resolution

Most Employment Standards complaints are solved through voluntary resolution. Employees and employers often want to resolve disputes in a timely, fair and respectful manner. Investigators help them reach an early resolution by explaining the issues and the law. Each party has a reasonable opportunity to understand whether wages are owing and how they're calculated if so.

Voluntary resolution can meet the parties’ needs without a legal decision. It is almost always faster than a formal determination. An employer and employee can agree to resolve some or all of a complaint at any time before the investigation ends. The investigator can provide a settlement agreement to make the resolution binding.

The benefits of voluntary resolution include:

• ​Parties can resolve the issue quickly
• Employees may receive wages sooner
• The parties drive the outcome and decide what's fair and reasonable
• The dispute ends without further appeal proceedings
• The resolution can meet all or most of the parties' needs
• Employers and employees don't have to receive formal demands for records and information

​A complainant can also withdraw their complaint at any time if they decide that the issue is resolved.

If the parties don't resolve together, the investigation continues. The investigator will issue a formal decision called a determination.

Determination

 A determination is a formal legal decision issued by a delegate of the Director of Employment Standards. A determination:

• States whether an employer has followed employment standards
• Discusses the merits of a complaint
• Typically includes findings about whether anyone has contravened the Act
• Can allow Employment Standards to collect wages and interest from an employer

Employment Standards issues determinations when:

• The parties can't reach a fair and timely resolution after education
• Voluntary resolution isn't appropriate

​Determinations are most often issued when the parties don't agree on how the Act applies. This could include a disagreement about owing wages. If a party doesn't participate or the Act doesn't apply to a complaint, a determination can formally end the process.

Determinations can include mandatory administrative penalties based on contraventions of the Act. Employment Standards can also publish information about employers who have contravened the Act.

Not all outcomes involve paying wages. For example, a determination may find that:

• The Act doesn’t apply to the complaint
• No wages are owed under the Act
• There is insufficient evidence to prove the complaint

Either party can appeal a determination to the Employment Standards Tribunal.

Participation

To support a timely investigation, your participation should be both meaningful and timely.

Meaningful participation means providing relevant information and documents upon request. The investigator may help the parties identify what is relevant to the issues. It also includes responding to the information provided by the other party. Either party may have the best (or only) evidence available on certain issues.

Timely participation means responding as quickly as possible and within deadlines provided. Whether it's a request for information or an answer to a question, timely responses mean efficient investigations.

Non-participation

Non-participation limits voluntary resolution. It's difficult to reach an agreement if one or both parties don't meaningfully participate. Many complaints are resolved through active dialogue between both parties and the investigator.

Non-participation delays outcomes. For example, parties may be given deadlines to provide responses or more information. If both parties respond right away, the investigation can proceed almost immediately. Otherwise, the investigation may proceed at a slower pace.

If you don't provide information, the investigator may continue the investigation and make a decision without it. After the investigation is complete, you can't provide any more information or refute the other party’s evidence.

Provide information

Both parties should be ready to provide any information and documents that may be relevant to the complaint. You may need to provide documents within strict timelines when asked.

Role of the investigator

The investigator’s role is to:

• Identify the issues under the Act
• Determine what is relevant to the issue
• Gather additional records and evidence as needed

The investigator guides and controls the process to help the parties move through an investigation. A decision to resolve a complaint through investigation doesn't represent a breach of natural justice.

The investigator can choose how to conduct the investigation. They may move back and forth between stages at any time. They will make reasonable efforts to:

• Contact both parties to provide education on the application of the Act
• Gather information
• Discuss each party's position on the issues

Investigators have broad discretion over the conduct of an investigation. The Act doesn't require an oral hearing, but it does give the parties a reasonable opportunity to respond.

Information shared between parties

The Act does not create a discovery obligation. Employment Standards doesn't need to disclose all the information received during an investigation.

An investigation under the Act doesn't give the parties the same rights as a judicial setting (for example, the BC Supreme Court).

Reasonable opportunity to respond

An investigation is an information-gathering process led by the investigator. All parties have a reasonable opportunity to:

• Provide information
• Support their position
• Respond to information provided by the other party

This means they have the right to:

• Know the case against them
• Present their evidence or information
• Be heard by an independent decision-maker

As an investigation progresses, the investigator will make reasonable efforts to hear each party's side of the story. They will give each party reasonable opportunities to understand, question or challenge the other party’s evidence.

The investigator determines when the parties have had a chance to respond to each other's information. This avoids a never-ending cycle of responses back and forth. It does not represent a breach of natural justice rights.