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Court of Appeal Reverses Finding That Employees Can Sue For ESA Benefits
May 26, 2008

The British Columbia Court of Appeal has held that a woman who was told when she was hired that she would not be paid overtime cannot sue her ex-employer for the overtime payments to which she would have otherwise been entitled under the Employment Standards Act.

The BC Supreme Court decision in this case had held that the provisions of the ESA are automatically incorporated into employment contracts and that an employee who does not receive the pay and benefits required by the ESA can sue in civil court to recover them. The Court of Appeal reversed this decision, concluding that the provisions of the ESA are not automatically incorporated into employment contracts. According to the appellate court they must, instead, be specifically incorporated by agreement in order for an employee to be entitled to bring a civil action. If they are not specifically incorporated into an employment contract, the employee must file a complaint under the ESA to recover unpaid ESA wages and benefits.

This decision limits an employer’s liability for wages and benefits provided for in the ESA, but not in the employment contact, to those that the employee should have been paid during the six month period before he or she files a complaint with the Employment Standards Tribunal. Had the Court of Appeal endorsed the BC Supreme Court decision, employers might have been liable in civil claims for six years of unpaid ESA wages and benefits.

(Click here for Decision)