A job is a relationship between you and your employer. It may, however, be a relationship on unequal terms, and you may find yourself being treated unfairly. Not being paid for hours worked, not receiving adequate vacation time, or being fired without a good reason are examples of unfair treatment. All employment relationships should meet a basic standard, and in BC this standard is set out in a law called the BC Employment Standards Act. When you are being treated unfairly by your employer, you should take action. This article outlines when and how to do this.
Learn Your Rights
When you feel something is not right or fair in your workplace, it probably isn’t. Trust your instincts. Often employers, just like employees, do not know what the law is in respect to workplace standards. Take some time to learn your rights. Working in BC: Your Rights and Legal Responsibilities, published by the People’s Law School, is available at the TAPS office or online at http://www.publiclegaled.bc.ca. Know Your Rights at Work: A BC Employee Field Guide, published by Vancouver Island Industrial Workers of the World, is also available at the TAPS office or online at http://zinelibrary.info/files/bc-workers-rights.pdf. You can often improve your relationship with your employer by explaining what the law requires of them in a kind and straightforward way.
Filing a Complaint
If you cannot resolve the problems with your employer directly, you can file a complaint with the BC Employment Standards Branch (ESB) anytime within six months of the incident occurring if you are still working for the same employer, or six months from your last day of work if you are not.
The Employment Standards Self-Help Kit
In most cases, the first step before you can file a formal complaint is to try and resolve your issue directly with your employer using the Employment Standards Self-Help Kit. The self-help kit is a document that helps you outline what your complaint is about and what you require your employer to do if they want to avoid further legal action. Once you have completed the document, you forward it to your employer either in person or by mail. Your employer has 15 days to respond to your complaint.
Please note: if you are within 30 days of the end of your six-month period to file a formal complaint, you should file the formal complaint first (see Employment Standards Complaint Submission, below), and then proceed with the self-help kit.
The easiest way to complete the self-help kit is online (to get internet access you can try any public library). If you are unable to use a computer, you can call the Employment Standards Branch in Victoria at 250-387-6121 to ask for help.
Employment Standards Complaint Submission
If your employer does not respond to the requests you have made in the self-help kit within 15 days, you will need to file a formal Employment Standards Complaint Submission. Once again, the easiest way to do this is online. If you need help, contact your local ESB or TAPS. If you complete the submission online, remember to record the confirmation number and print a copy of the complaint for your records.
After the formal complaint is received by the ESB, you and your employer will be contacted by an Employment Standards Officer appointed by the ESB. The officer will explain how the specific legislation is typically applied to a complaint and urge both you and your employer to resolve the dispute. If no resolution is reached at this stage, the settlement worker will proceed with a formal investigation, mediation, or adjudication. You and your employer can agree to a settlement at any time during the process.
Most employment standards complaints are resolved through mediation. Mediation is a semi-formal process where you and your employer meet with an officer from the ESB to discuss resolving the complaint. The officer listens to both sides and then gives some information on how the law should be applied given the specific circumstances of the complaint. If you and your employer agree on a settlement at this point, you are asked to sign a settlement agreement. If you sign this agreement, you are declaring that you will pursue no further action on the complaint through the ESB. If your settlement results in your employer owing you money, the branch will pursue your employer to help ensure that you are paid.
If your complaint proceeds to a formal adjudication, be sure to take the time to prepare. Adjudications only occur when the employee and the employer cannot find a resolution through mediation. At the adjudication hearing, you and your employer will have the opportunity to provide evidence for the consideration of an officer appointed by ESB. After the hearing the officer will issue a decision, generally within eight weeks. If the decision states that your employer did in fact break the law, then your employer will have to pay you the amount that you are entitled to under the Act, including interest on the amount owing in most cases. In addition, your employer will be fined a mandatory penalty for each section of the Act they have contravened. This means that many employers are eager to settle complaints before adjudication. Remember this, and be sure to ask for everything you are entitled to and stand your ground in pursuit of what is fair at the informal mediation stage.
The present day is a dark time for relationships between employees and employers, and it is therefore more important than ever to stand up for yourself. Between 2001 and 2005 the ESB went through dramatic cuts. One third of ESB staff were laid off, and the number of local offices providing assistance with complaints and investigations was reduced from 17 to 9. At the same time the number of workplaces and workers in BC was growing rapidly, creating a larger need for fair and accessible dispute resolution services. On top of these cuts, the requirement that employees complete a self-help kit before proceeding to formal dispute resolution has significantly decreased the number of employees willing to take action against their employer. From 2001 to 2004 the number of employees who filed a complaint with ESB decreased by 61%.
Take action for yourself, and if you need support remember to contact someone for assistance. TAPS provides employment standards assistance Tuesdays and Wednesdays. Drop by TAPS at 302 – 895 Fort Street, or give us a call at 250-361-3521.