Employment standards – Complaint resolution

Basic rules

• Understand rights and obligations under the Employment Standards Code as an employee and an employer.
• An employee may file a complaint if they feel the minimum standards haven’t been met.
  • Talking with an employer to resolve an issue is always the first step for an employee before submitting a complaint.
• Seek to arrive at a voluntary resolution, whether through discussion directly between the two parties or through mediation.
• Enforcement actions may be issued.

Resources

• Employment standards tool kit for employers – Module 11: Complaint resolution
• Webinar – Administration and enforcement

Enforcement philosophy

Employment standards strives to promote and uphold rules outlined in the Employment Standards Code to protect the rights of Alberta workers. Employees are protected by the standards outlined in the Code, and employers are obligated to comply with at least the minimum requirements.

Employment Standards believes in educating and informing both employers and employees about their rights and obligations so both parties can work in a safe and fair work environment. If an employee believes that their employer is not fulfilling legislated responsibilities, the employer and employee are encouraged to work together to come to a fair and equitable resolution.

While enforcement action by Employment Standards is possible, a process of mediation or voluntary resolution between an employer and employee is encouraged. Voluntary resolution is a more efficient process and can lead to a fair arrangement that both parties agree to, with minimal third-party involvement.

Voluntary resolution

Voluntary resolution:

• is achieved when an agreement is reached between the employer and employee that resolves some or all aspects of the complaint
• can be an outcome at any point during the complaint resolution process, even if the complaint is under investigation
• may be accompanied by a direction of officer if the employer has been found to be non-compliant, which directs the employer on how to change their actions to be compliant with employment standards

Voluntary resolution can generally occur in 3 ways:

1. when notified of the complaint, the employer accepts responsibility and pays what’s owed the employee or provides the missing entitlements
2. discussions directly between the employer and employee result in an agreement
3. through a mediation process with the involvement of Employment Standards

Mediation

Mediation is an approach to resolution that can be used for any complaint by an employee. Both the employer and employee have the opportunity to express their needs and priorities through the mediation process.

An Employment Standards officer may act as a mediator between the employer and employee to assist both parties in reaching a fair settlement or compromise, on terms both the employer and employee agree to without requiring further investigation of the complaint.

The benefits of mediation include:

• the agreement is arrived at between the employer and employee without a third party imposing a decision
• the ability for both the employer and employee to come to an agreement that is fair and reasonable given the circumstances
• the issue can be resolved faster and money can be paid to the employee sooner, even if it isn’t the amount the employee identified in the complaint

Mediation can work more quickly than enforcement action in achieving resolution of the complaint. It doesn’t guarantee the employee will receive full payment of money owed. However, enforcement action doesn’t guarantee payment in full, or payment in a timely manner.

Mediation process

1. Mediation through Employment Standards begins with an officer providing information about the Employment Standards Code to the employee and employer to inform both about their rights and obligations.
2. The officer clarifies the facts about the claim by reviewing the complaint, which may involve the following
   • requesting and reviewing employment records
   • sharing records obtained by employer/employee with the employee/employer so both parties are aware of the information
   • contacting relevant witnesses, as necessary
3. After reviewing the facts, the officer offers options to the employer and employee of ways they can come to an agreement, leaving the final decision up to the employer and employee.
4. The last step is to confirm the settlement agreement in writing.

Although voluntary resolution can be achieved at any time in the process, if no settlement is agreed to early on, the process will transition to a formal complaint investigation.

Non-voluntary resolution

Non-voluntary resolution:

• occurs when a voluntary agreement can’t be reached between the employer and employee in terms of paying money owed, reinstatement of the employee, or any other non-compliance with the employment standards
• results in enforcement action through a formal investigation of a complaint
• escalates the complaint resolution process

Complaint investigation process

A formal complaint investigation will include a complete examination of evidence and documentation including payroll records and timesheets which, if requested, must be provided by the employer. However, an investigation doesn’t guarantee an employee will receive money they are owed and it can take some time to complete. Further, any order that results from the investigation can be appealed.

At any point during the investigation process, the parties may choose the option of voluntary resolution, which may include mediation.

Enforcement actions

An officer or the Director of Employment Standards can enforce the legislated standards in different ways. These include:

• decision of officer or Director
• order of officer or Director
• direction of officer
• certificate of corporate director liability
• administrative penalties
• prosecution

Complaints regarding reinstatement of employment or compensation after wrongful suspension, termination, or lay off are referred to the Director of Employment Standards for review.

If the minimum standards have been met

If the employer has met the minimum standards, and the complaint is not resolved voluntarily, the officer can issue a decision of officer stating that the employer is compliant with the Code, and inform the employee.

Decision of officer

A decision of officer is made if the officer determines the employee making the complaint:

• isn’t entitled to payment
• wasn’t suspended, terminated or laid off inappropriately

A decision of officer may also be issued if the officer has valid reason to refuse to accept or investigate a complaint.

Decision of Director

A decision of Director is made if the Director determines:

• the employee hasn’t been wrongfully suspended, terminated or laid off
• no compensation or reinstatement is due

If the minimum standards haven’t been met

If the employer hasn’t met the minimum standards and a resolution can’t be reached through mediation, an order of officer can be made and issued to both the employer and the employee.

If the employer agrees to voluntary resolution but isn’t meeting the minimum standards, a direction of officer can be issued.

Direction of officer

A direction of officer can be issued when the officer determines the employer isn’t compliant with the Code. It gives direction on how the employer should change their actions to become compliant moving forward, and can be part of the complaint resolution or formal investigation process.

• Example: direction for how to provide proper pay statements and breaks during shifts.

Order of officer

An order of officer can be made regardless of whether a complaint has been filed and will be issued when:

• the employer isn’t compliant with the Code
• the issue is related to paying an employee properly
• a complaint has not been resolved voluntarily or through mediation

The order is issued to the employer to pay money owed to the employee.

Order of Director

An order of Director is made if the Director determines:

• the employee has been wrongfully suspended, terminated or laid off
• compensation or reinstatement is due

Certificate of corporate director liability

The directors of a corporation are personally responsible to employees of the corporation for unpaid wages earned during a period not exceeding 6 months. When wages owed to an employee are not paid by the corporation, the Director of Employment Standards may issue a certificate of liability to each corporate director and file the certificate as a judgment of the Court. No certificate may be filed more than 2 years after the person named ceased to be a corporate director.

Administrative penalties

Administrative penalties may be issued to the employer for contravention of the Code or failing to comply with a direction or order.

Appealing the enforcement action

An employee can appeal the enforcement action within 21 days of receiving notice.

See Appeals for more information.

Payment of order

When the employer pays an order, the case is closed. If the employer doesn’t pay or appeal within 21- days after receiving notice, the order is filed as a judgment of the Court.

If there’s failure to comply with an order or appeal body decision, the order or decision can then be filed with the Court and is enforceable as a Court judgment against the employer.

See Judgment collections for more information.

Third parties

If there’s a reason to believe that an employer has failed, or is likely to fail, to pay what’s owed to an employee, a demand may be served on a third party (a bank or anyone else who owes the employer money). The third party is obligated to pay the amount of the demand to the Director of Employment Standards.

Employment Standards Code

Part 3, Division 3 of the Employment Standards Code and sections of the Regulation outline the complaint resolution process.

Contact

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