A B.C. employer that appealed an employment standards ruling made a “conscious and deliberate” decision to stand aside during the initial investigation of a complaint by a former worker, a tribunal has ruled.
Further, the “new” evidence it wanted to introduce on appeal was available during the initial review, and the employer didn’t provide any explanation as to why it didn’t put it forward at the time, it said in dismissing the case.
Background
SN filed a complaint with the Employment Standards Branch against Buckley Industrial Consulting (Buckley) over unpaid wages. Buckley operates a seniors’ home care business and SN was a part-time caregiver from March 20, 2020, until Feb. 5, 2021.
SN resigned on Feb. 5, stating that her employment contract had been breached because she had been demoted unilaterally and without her consent.
Her claim included regular wages, overtime wages, statutory holiday pay, compensation for length of service and vacation pay following her termination.
The adjudicating delegate found in favour of SN and ordered the employer to pay $4,769.73. It also imposed four $500 administrative penalties, including penalties based on its failure to pay wages in a timely way and neglecting to ensure SN completed split shits within 12 hours of commencing work as required by employment standards legislation in B.C.
It rejected the employer’s allegation of just cause for dismissal because its claims of fraud against SN were uncorroborated by other evidence. It ruled the employer failed to make the case that it was justified in terminating her for cause.
Buckley appealed that ruling to the British Columbia Employment Standards Tribunal on the grounds there was new evidence that had become available and that the director erred in law.
Employer’s new evidence
Buckley said that, on Feb. 5, SN claimed to have worked — but a relative of a client for whom she was to have provided services that day said nobody showed up. In addition, it said the facility she was supposed to attend that day had no record of her being there.
The company also used a smartphone app that lets employees sign in for work using their phones as long as they’re close to the work site they’re visiting. It said SN would often contact their 24-hour call center to report problems with her phone and ask them to sign in for her, saying that she had arrived at work. It suggested she wasn’t actually present at work during these instances.
It also said SN would claim extra hours for herself after payroll was approved, and that it removed her access to the payroll software to stop her from “falsifying hours.”
Buckley also took issue with her claimed demotion, noting that she was not qualified to perform administrative duties and it never agreed to an appointment for her to perform them. The employee who purported to promote SN on its behalf was subsequently terminated, it said.
In addition, it noted that a period of about two months passed between the alleged removal of duties and the date she quit, and therefore SN must be deemed to have condoned the demotion.
Tribunal rejects ‘new’ evidence
The tribunal rejected Buckley’s “new” evidence. While there was no doubt it was material as to whether SN was lawfully dismissed for cause, it was also information the employer possessed prior to the original ruling in this case.
It could have presented that information during the initial investigation, “yet the employer provides no explanation why this did not occur,” it said.
It also noted the evidence consisted of statements by counsel for the employer, based largely on communications from third parties and the principal of Buckley. There was no written confirmation from the individuals themselves or any other documentation offered in support.
Further, it identified what it called a “major difficulty” for the employer in this case: It declined to participate fully in the process of the initial complaint investigation.
“The employer neglected to provide any further evidence or contact information for any witnesses which might have assisted the Investigating Delegate to confirm the employer’s accusations, despite the principal’s assertion that the evidence existed, and despite specific requests by the Investigating Delegate that the employer deliver it,” it said.
“The employer also failed to respond to a formal Demand for Employer Records the Investigating Delegate prepared and delivered subsequently.”
Simply put, the employer made a “conscious and deliberate” decision to stand aside during the investigation. It dismissed the appeal based on “new” evidence.
Error in law
Buckley argued the adjudicating delegate’s findings around hours of work were incorrect. The tribunal again rejected its claim.
It noted that appeals are not a “reinvestigation of a complaint.” Nor is it a chance to re-argue positions in the hope the tribunal will come to a different conclusion, it said.
“Rather, an appeal is a correction process with the burden of showing error resting solely on an appellant,” it said.
Also, the employment standards legislation does not provide an opportunity to correct a delegate’s errors of fact, unless those errors can be said to constitute errors of law, it said. For that to happen, there has to be a “palpable and overriding error.”
The appeal was dismissed, the the original determination was confirmed.
For more information see Buckley Industrial Consulting Inc. (Re), 2023 BCEST 36 (CanLII).
