• Responding to ESA Complaints
  • June 21, 2012 | Author: Earl Phillips
  • Law Firm: McCarthy Tétrault LLP - Vancouver Office
  • An employer should respond promptly, fully and carefully when it receives communications regarding possible violations of the Employment Standards Act (British Columbia).

    In most cases, the complainant must use the “Self Help” process to try to resolve the matter directly with the employer. That process starts with a Request for Payment to the employer. The Request should not be ignored. The process gives the employer a chance to resolve problems without involvement of the Employment Standards Branch.

    If the matter is not resolved, a complaint may be filed, and an officer of the Branch will contact the employer to investigate. If the employer wants to contest the claim, it must provide all relevant evidence and make all available arguments during the investigation because

    • an officer is only required to “make reasonable efforts” to give an employer an opportunity to respond, which may be a letter or a couple of phone calls, and no more;

    • a “Determination” is issued after the investigation, and it can be enforced with extensive powers of collection;

    • there is a limited right to appeal a Determination; and

    • evidence which could have been tendered during the investigation but was not, is generally not admissible on appeal.

    As soon as a Request for Payment or complaint is received, employers should gather and preserve all relevant evidence and consider getting legal advice to make a full response.