Investigations - Act Part 10, Section 76

Last updated on December 4, 2023

The former legislation and policy interpretation applies to complaints filed before August 15, 2021.

Contents:

Summary
Text of Legislation
Policy Interpretation
Former Legislation and Policy Interpretation (prior to August 15, 2021)
Related Information

Summary

This section outlines the responsibilities of the director regarding complaints received under the Employment Standards Act.

Text of Legislation

Note: The amended subsection (1) and new subsections (1.1), (1.2), (1.3), (1.4) and (1.5) only apply to complaints received on or after August 15, 2021. The former subsection (1) and repealed subsection (2) only applies to complaints received before August 15, 2021.

76. (1) Subject to subsection (1.1), the director must accept a complaint made under section 74.

(1.1) The director must refuse to accept a complaint if the complaint is not made within the applicable time period required by section 74 (3) or (4), or any extension of the applicable time period granted under section 74 (5).

(1.2) On accepting a complaint under subsection (1), the director must review the complaint and make a decision about whether any of the circumstances described in subsection (3) (b) to (i) apply to the complaint.

(1.3) If the director takes no action under subsection (3), the director must investigate the complaint, and this investigation may involve an alternative dispute resolution process.

(1.4) Despite subsection (1.3) but subject to subsection (3), if the director decides that the complaint may relate to employees other than the employee who made the complaint, the director may

(a) refuse to investigate the complaint or stop or postpone investigating the complaint, and

(b) conduct a broader investigation that addresses the subject matter of the complaint.

(1.5) Despite subsection (1.4) but subject to subsection (3), the director must investigate the complaint if the director

(a) does not complete the broader investigation referred to in subsection (1.4) (b), or

(b) the broader investigation does not resolve the issues raised in the complaint.

(2) Repealed

(3) The director may stop or postpone reviewing or investigating a complaint or refuse to investigate a complaint if the director is satisfied that

(a) repealed

(b) this Act does not apply to the complaint,

(c) the complaint is frivolous, vexatious or trivial or is not made in good faith,

(d) repealed

(e) there is not enough evidence to prove the complaint,

(e.1) despite the director's attempt to arrange for the complainant's participation in a review or investigation or to obtain information from the complainant, the complainant failed to participate in the review or investigation or to provide information,

(f) a proceeding relating to the subject matter of the complaint has been commenced before a court, a tribunal, an arbitrator or a mediator,

(g) a court, a tribunal or an arbitrator has made a decision or an award relating to the subject matter of the complaint,

(h) the dispute that caused the complaint may be dealt with under section 3 (7), or

(i) the complaint has been resolved, including by way of a settlement agreement made under section 78.

Policy Interpretation

Subsection (1)

The director must accept and review a complaint that has been filed under s.74 of the Act, subject to the exceptions outlined in this section.

Subsection (1.1)

If a complaint is not filed within the timelines set out in section 73(3) or (4), as appropriate, the director cannot investigate the complaint. The only exception is if a complainant files an application, as described in 74(5) with the director, and an extension to the time limit for filing a complaint is granted.

Subsection (1.2)

Once a complaint is accepted, the director may consider if any of the circumstances set out in in 74(3) apply to the complaint, and if so, whether the director should exercise their discretion not to investigate.

Subsection (1.3)

If a complaint is filed in time, and if the director does not exercise their discretion not to investigate based on one of the factors in 74(3), the director must investigate the complaint.

Subsection (1.4)

In the event a complaint is filed with respect to alleged contraventions that do not relate to the employee who filed that complaint, the director may choose not to investigate that particular complaint or to postpone investigating that particular complaint, but in that case must conduct a broader investigation into the allegations set out in the complaint.

Subsection (1.5)

If the director does not conduct a broader investigation into a complaint not relating to an employee who filed the complaint, as described in 74(1.4), or the broader investigation does not resolve the allegations raised in the complaint not relating to an employee who filed the complaint, the director must then investigate the complaint not relating to the employee who filed the complaint.

Subsection (2) Repealed

Subsection (3)

The director accepts and reviews every complaint. Circumstances where the director may exercise discretion to stop or postpone reviewing or investigating a complaint include:

(a) Repealed

(b) This Act does not apply to the complaint.

Examples

The director cannot interpret or enforce a provision of a collective agreement.
The director cannot remedy occupational health and safety issues, income tax issues or human rights issues.
The director cannot resolve a complaint if the employer is under federal jurisdiction.

(c) The complaint is frivolous, vexatious, trivial, or is not made in good faith. The purpose of this subsection is not to refuse or discontinue investigation of valid complaints. The objective is to allow the Director to prevent misuse or abuse of the legislation or the dispute resolution process.

Examples

A complaint that has no serious purpose and is not likely to succeed: After attending a workplace party after hours, an employee requests payment of wages.
A complaint that is intended to harass, annoy, embarrass or cause financial cost in defending: An employee complains that an employer paid wages two days late although the employer has never paid late before.
A complaint that is so minor or technical that it is not worth proceeding: An employee complains that one lunch break lasted 28 minutes rather than 30 as required by the Act.
A complaint that is motivated by unfairness or is intentionally inaccurate, exaggerated or misleading.

(d) Repealed

(e) Neither the employer nor the employee provides the information necessary to determine whether the Act was contravened. The director may penalize employers who fail to keep proper records as required by the Act.

(e.1) The director has made reasonable efforts to contact a person who has made a complaint and to engage them in the initial review of the complaint or the investigation of the complaint, but the person who made the complaint has not participated or provided information.

(f) A person who made the complaint has begun another proceeding on the same matter. Another proceeding may include a human rights complaint or a court case.

(g) A final decision has been made regarding the same issue between the same parties by a court, tribunal or arbitrator.

(h) Disputes relating to the application, interpretation or operation of any of the provisions of the Act deemed to be incorporated into a collective agreement under ss. 3(3) or 3(5) of the Act, or a provision specified in s.3(6) of the Act must be resolved using the grievance procedure in the collective agreement.

(i) A complaint is resolved when it is withdrawn, when the employer pays amounts owing or the parties agree it is resolved. This includes circumstances where there is a settlement agreement in place that resolves the allegations set out in the complaint.

Former Legislation and Policy Interpretation

A transitional provision in section 40 of Bill 8 – 2019: Employment Standards Amendment Act, 2019 provides that complaints received and not resolved before the date the changes to this section came into force (August 15, 2021) are subject to the former text of this section, given and interpreted below:

Expand All | Collapse All

Text of Legislation and Policy Interpretation prior to August 15, 2021

Text of Legislation

76. (1) Subject to subsection (3), the director must accept and review a complaint made under section 74.

(2) The director may conduct an investigation to ensure compliance with this Act and the regulations, whether or not the director has received a complaint.

(3) The director may refuse to accept, review, mediate, investigate or adjudicate a complaint or may stop or postpone reviewing, mediating, investigating or adjudicating a complaint if

(a) the complaint is not made within the time limit specified in section 74 (3) or (4),

(b) this Act does not apply to the complaint,

(d) the employee has not taken the requisite steps specified by the director in order to facilitate resolution or investigation of the complaint,

(e) there is not enough evidence to prove the complaint,

(f) a proceeding relating to the subject matter of the complaint has been commenced before a court, a tribunal, an arbitrator or a mediator,

(g) a court, a tribunal or an arbitrator has made a decision or an award relating to the subject matter of the complaint,

(h) the dispute that caused the complaint may be dealt with under section 3 (7), or

(i) the dispute that caused the complaint is resolved.

Policy Interpretation

Subsection (1)

The director must accept and review a complaint that has been filed under s.74 of the Act, subject to the exceptions outlined in this section.

Subsection (2)

The director is not limited to reacting to complaints, and can take whatever initiatives are considered advisable in order to obtain compliance with the Act. The director’s role is to:

promote consistent application and interpretation of the Act and Regulation
promote voluntary compliance
promote open communication between the Branch, employer and employees
maximize efficient use of Branch resources
encourage proactive consultation and education
Subsection (3)

The director accepts and reviews every complaint. Circumstances where the director may exercise discretion to stop or postpone reviewing, mediating, investigating or adjudicating a complaint include:

The complaint was not filed within six months after the last day of employment, as set out in sections 74 (3) and (4) of the Act.

Example
- A complainant’s last day of employment is June 22. The six month period to file a complaint runs from June 23 to December 22.
  
  The Director may exercise discretion to stop investigating a complaint. In doing so, the Director considers the reasons the complainant provides for filing late, the purposes of the Act, and the importance of the statutory time limit set out in section 74.
This Act does not apply to the complaint.

Examples
- The director cannot interpret or enforce a provision of a collective agreement.
- The director cannot remedy occupational health and safety issues, income tax issues or human rights issues.
- The director cannot resolve a complaint if the employer is under federal jurisdiction.
The complaint is frivolous, vexatious, trivial, or is not made in good faith. The purpose of this subsection is not to refuse or discontinue investigation of valid complaints. The objective is to allow the Director to prevent misuse or abuse of the legislation or the dispute resolution process.

Examples
- A complaint that has no serious purpose and is not likely to succeed: After attending a workplace party after hours, an employee requests payment of wages.
- A complaint that is intended to harass, annoy, embarrass or cause financial cost in defending: An employee complains that an employer paid wages two days late although the employer has never paid late before.
- A complaint that is so minor or technical that it is not worth proceeding: An employee complains that one lunch break lasted 28 minutes rather than 30 as required by the Act.
- A complaint that is motivated by unfairness or is intentionally inaccurate, exaggerated or misleading.
The employee has not taken the requisite steps specified by the director in order to facilitate resolution or investigation of the complaint.
Neither the employer nor the employee can provide the information necessary to determine whether the Act was contravened. The director may penalize employers who fail to keep proper records as required by the Act.
A person who made the complaint has begun another proceeding on the same matter. Another proceeding may include a human rights complaint or a court case.
A final decision has been made regarding the same issue between the same parties by a court, tribunal or arbitrator.
Disputes relating to the application, interpretation or operation of any of the provisions of the Act deemed to be incorporated into a collective agreement under ss. 3(3) or 3(5) of the Act, or a provision specified in s.3(6) of the Act must be resolved using the grievance procedure in the collective agreement.
A dispute is resolved when a complaint is withdrawn, when the employer pays amounts owing or the parties agree it is resolved.

Transitional provisions connect former legislation and new amendments. Find out more about recent transitional provisions and consequential amendments to the Employment Standard Act and Regulation.

Related Information

Employment Standards Tribunal Decisions

Kyle W. Kruetzer, BC EST # D068/08
H.M. Tsang Co., Ltd., BC EST # D292/03
Jody L. Goudreau et al., BC EST # D066/98

Related sections of the Act or Regulation

ESA

Court Decisions

Macaraeg v. E Care Contact Centers Ltd., 2008 BCCA 182, leave to appeal refused, [S.C.C.A. No. 293 (QL).
Karbalaeiali v. B.C. (Employment Standards), 2007 BCCA 553

Labour Relations Code

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Investigations - Act Part 10, Section 76

Summary

Text of Legislation

Policy Interpretation

Former Legislation and Policy Interpretation

Text of Legislation

Policy Interpretation

Related Information