Employment Standards Branch and Overlap with HRT and Small Claims Employment Law Employment Standards Branch and Overlap with HRT and Small Claims

Employment Standards Branch - Jurisdiction Sets the minimum standard protections for workers regarding wages, vacation and holiday pay, overtime, pregnancy leave/leaves of absence and termination standards Only “looks back” at the last 6 months of employment 6 month limitation period Does NOT apply to: federally regulated employees Unionized workers Independent contractors Certain professions (such as lawyers)

Employment Standards Branch - Termination All employees covered by the Employment Standards Act (ESA) have the right to be given notice before they are termination or severance in lieu of notice. Amount of notice (or pay in lieu of notice) required is based only on length of service (under the ESA, the common law looks at more) Unless the employer can prove “just cause” Very high standard, must be very serious breach Can require documented warnings, offers of training and more, unless single incident is serious

Termination Issues ESB claims can include claims of “constructive dismissal” Clients are under a duty to mitigate after they are dismissed In rare circumstances clients can also claim aggravated or punitive damages based on the manner of dismissal (but in small claims court, not ESB)

Overlapping Jurisdiction = you can apply in ALL forums Employment Standards Act (ESA) /Employment Standards Branch (ESB) BC Human Rights Code/ Human Rights Tribunal (HRT) Small Claims Court/Civil Resolution Tribunal (CRT)

Employment Standards Act (ESA) /Employment Standards Branch (ESB) Claims for “statutory severance” and unpaid wages (commissions and overtime) Sets the bare minimum protections/rights for employees Maximum 0f 8 weeks severance unpaid wages for last 6 months of employment 6 month limitation period Must complete “self-help kit” first, unless within 30 days of deadline

BC Human Rights Code/ Human Rights Tribunal (HRT) Requirements: membership in protected group; negative treatment; and NEXUS (connection between treatment and group status) Nexus can be inferred, but usually some evidence is required Ask for any and all evidence, including what oral testimony they can give, then consider if that is enough 1 year limitation period Very limited exceptions – very hard to establish

Small Claims Court/Civil Resolution Tribunal (CRT) Claims for ‘common law’ severance\ IF Bardal factors are in client’s favour (and supportive case law) Claims for unpaid wages (including commission and holiday pay) BUT ONLY when those wages are part of the employment contract (oral or written) When claims are less than $5,000 = CRT Summary advice OR when appropriate be a “helper” 2 year limitation date

Strategy Start with Demand letter that includes all possible claims (HRT, ESB and Small Claims/CRT) Argue why claim is worth X, then offer to settle for some amount less than X (ex. X – 25%) First file in ESB and HRT (if claim exists) Satisfy the 6 month deadline Keep Small Claims Court/CRT claim as bargaining tool Consider when making ‘global settlements’ Can be used to help get a ‘structure settlement’