Breaches of Employment Standard Rights
In British Columbia, there is case law to the effect that employees may not seek to directly enforce rights under the ESA in civil court, and must instead use the Employment Standards Branch to enforce these rights. It is important to act quickly in these cases.
Section 74 of the ESA states that a complaint with the Employment Standards Branch must be in writing and delivered to a office of the Branch within 6 months of the dismissal or other contravention.
The Employment Standards Branch has a practice of requiring complainants to use a Self-Help Kit to attempt to resolve the dispute before it proceeds with a complaint. It recommends that complainants who are 30 days or less from the 6 month deadline file the complaint with the Employment Standards Branch and then use the Self-Help Kit to try to resolve the problem. There are some circumstances in which the Employment Standards Branch will accept a complaint where a Self-Help Kit has not been used.
The Employment Standards Tribunal is an administrative tribunal established under the ESA. The Tribunal conducts appeals of determinations issued by the Director of Employment Standards and may also reconsider any order or decision it makes.
In cases involving certain types of errors of law, judicial review may then potentially be sought in the courts.
The above applies to non-unionized employees.
In the case of unionized employees, section 3(7) of the ESA states that where there is a collective agreement, the enforcement of matters relating to the ESA is through the grievance procedure, not through the enforcement provisions of the ESA. The interplay between a collective agreement and the ESA can be a complex area. Even employees who are represented by a union may benefit from retaining their own legal counsel.