A former salesperson at at Hyundai dealership in Cranbrook, B.C. — who filed a complaint over unpaid overtime, vacation pay, commission and compensation for length of service — has had her appeal dismissed by the British Columbia Employment Standards Tribunal.
The case originated on July 19, 2021, when the worker, TK, filed a complaint under the Employment Standards Act (ESA) against her former employer.
The Director of Employment Standards initiated a two-step investigation process, with an investigative delegate corresponding with both parties and gathering information and evidence.
Subsequently, an investigative report was prepared, which the parties reviewed and commented on. The matter was then passed on to an adjudicative delegate, responsible for reviewing the responses and issuing the Determination.
Additional wages paid following investigation
During the investigation, it was discovered that additional wages were owed to TK for compensation for length of service and annual vacation pay. Consequently, the employer paid her an additional amount of $6,869.49 in gross wages.
The determination, issued on March 29, 2023, stated that the ESA had not been contravened by the employer, and no wages were outstanding. As per the ESA’s Section 76(3), no further action would be taken.
Displeased with the outcome, TK appealed the determination, citing two statutory grounds of appeal: alleging that the Director erred in law and failed to observe the principles of natural justice in making the determination.
The tribunal reviewed the appeal submissions and concluded that it was unnecessary to seek submissions from the employer or the Director at this stage of the proceeding, based on the existing record and the appeal submissions.
The central issues considered during the appeal were whether the employer owed TK overtime wages, compensation for length of service, annual vacation pay, and additional commission wages.
Overtime wages
Regarding overtime wages, the adjudicative delegate found that TK was a salesperson paid by commission and thus exempt from overtime entitlements under Section 37.14 of the Employment Standards Regulation.
The delegate reviewed payroll evidence, concluding that the exclusion under Section 37.14 applied to the employee’s employment, and she was not entitled to overtime wages.
Length of service
With respect to compensation for length of service, the delegate agreed with the investigative delegate’s assessment and found that the employer had already paid the appropriate amount.
Vacation pay
Regarding annual vacation pay, the employer voluntarily paid the outstanding amount to TK based on the investigative delegate’s assessment, which the adjudicative delegate found to be correct.
Commission wages
Finally, concerning the additional commission wages, TK claimed that her commissions were negatively affected by a change in the way fuel costs were recorded.
The adjudicative delegate, however, found that the manner of recording the fuel cost did not contravene her employment agreement or the ESA. Moreover, she failed to demonstrate how this change adversely affected her commission wages.
No merit in claims
The tribunal found no merit in her claims. Specifically, the tribunal did not find any misinterpretation or misapplication of the law in the determination.
The tribunal emphasized that an appeal is not an opportunity to re-argue the case or seek a different factual conclusion. It must be an error correction process, and the burden is on the appellant to demonstrate errors in the Director’s determination under the statutory grounds of review.
Ultimately, the tribunal found no evidence to support the Employee’s claims and concluded that the appeal lacked merit and had no prospect of succeeding. It dismissed the appeal under Section 114(1)(f) of the ESA, thereby confirming the Determination dated March 29, 2023.
For more information, see Tamara Kirk (Re), 2023 BCEST 59 (CanLII)
