The B.C. Employment Standards Tribunal has ordered a new investigation into the complaints of a salesperson against her former employer, Bioriginal Food & Science Corp.
The tribunal found a breach of natural justice in the initial investigation, ultimately leading to the cancellation of a previous determination and ordering a new investigation into the long-running case.
The case revolves around six complaints filed by A.Z., who worked for Bioriginal from 2015 until she left in November 2020. Among her complaints were allegations of wage discrepancies, unauthorized deductions, and retaliatory dismissal.
The tribunal’s reconsideration panel determined that she was not provided a fair opportunity to respond to findings made during the investigation, particularly those that resulted in a significant reduction in the amount owed to her.
Dispute over wages and retaliatory dismissal
The initial investigation by a delegate of the B.C. Director of Employment Standards concluded that Bioriginal had breached the Employment Standards Act (ESA). In August 2023, the adjudicating delegate ordered the company to pay A.Z. $95,115.26 in wages, vacation pay, compensation for retaliatory dismissal, and interest. Additionally, administrative penalties of $2,500 were imposed, bringing the total to $97,615.26.
A.Z. had originally alleged that Bioriginal made unauthorized deductions from her wages, denied her commissions, and wrongfully dismissed her. Among the most significant allegations was that the company’s decision to retroactively alter her commission plan in 2017 amounted to a constructive dismissal under section 66 of the ESA.
The complaints also included claims of mistreatment under section 83 of the ESA, which prohibits employers from retaliating against employees who assert their rights. A.Z. sought compensation for the retaliatory dismissal, which was initially granted by the adjudicating delegate.
Despite these findings, A.Z. appealed the August 2023 decision, arguing that the calculated amounts owed were inaccurate and that the three-month compensation for retaliatory dismissal was insufficient.
Appeal dismissed, but reconsideration granted
In December 2023, the Employment Standards Tribunal dismissed her appeal, stating that there was no reasonable prospect of success. However, A.Z. then applied for reconsideration, raising concerns about natural justice and procedural fairness in the handling of her case.
The tribunal’s reconsideration panel agreed with A.Z.’s argument that the adjudicating delegate failed to properly notify her of significant changes to the findings initially laid out in the investigation. Specifically, earlier findings from 2020 had indicated that A.Z. was owed more than $200,000 — more than double the amount in the final determination.
“The [previous findings] established, as ‘Final Findings,’ that the Employer had dismissed the Applicant pursuant to section 66 of the ESA in May 2017. They also established that the Applicant was owed $201,061.97 due to the Employer’s contraventions of the statute,” the reconsideration panel stated in its decision.
The panel found that A.Z. had a reasonable expectation that these earlier findings would form the basis of the final determination unless she was informed otherwise. However, when the adjudicating delegate issued a new determination, it reduced the amount owed significantly without giving her a chance to respond to these new findings.
“The failure to alert the Applicant that the Determination would incorporate new findings means that the process followed in the investigation was unfair,” the panel wrote.
A complex investigation
The case’s complexity was compounded by the involvement of three different delegates of the Director of Employment Standards throughout the investigation. The original delegate in 2020 had established findings in A.Z.’s favour, but subsequent delegates issued interim reports that did not include final findings or conclusions. The final determination, made in August 2023, differed significantly from the earlier findings, reducing the amount owed to A.Z.
According to the tribunal, A.Z. was not given the opportunity to respond to the new findings made in the final determination, which contradicted the earlier “Final Findings” she had received.
The reconsideration panel stated that even though section 78.1 of the ESA, which requires a written summary of findings, did not apply to this case, the principles of natural justice still required that A.Z. be given the opportunity to respond to any new findings before a final determination was issued.
Tribunal orders new investigation
The tribunal concluded that the original investigation was unfair and, as a result, cancelled the August 2023 determination. It ordered that A.Z.’s complaints be referred back to the Director of Employment Standards for a fresh investigation and determination.
“[W]e have decided that the proper resolution of the Application is to order that the Appeal Decision be varied to provide that the Determination is cancelled, and the Complaints be referred back to the Director for consideration afresh on an expedited basis,” the panel wrote.
The fresh investigation will now give both A.Z. and Bioriginal the opportunity to present evidence and respond to any new findings, ensuring compliance with natural justice principles. The tribunal emphasized the importance of fairness and transparency in the investigation process, particularly in cases involving complex wage disputes and claims of retaliatory dismissal.
For more information, see Angela Zavediuk (Re), 2024 BCEST 79 (CanLII).
