Employment Standards Code (ESC) Appeals

The Employment Standards Branch (“ESB”) administers laws on employer responsibilities and employee rights such as minimum wages, hours of work, holidays and other workplace entitlements and responsibilities. ESB enforces The Employment Standards Code, The Construction Industry Wages Act, The Remembrance Day Act and The Worker Recruitment and Protection Act, and it also investigates complaints about violations of these laws.

The Board is an appeal body in Employment Standards matters. Complaints about Employment Standards Code issues should be made to the Employment Standards Branch. Information about the Employment Standards Branch and how to file a complaint can be found at: Employment Standards | Employment Standards.

The Role of the Board in Employment Standards

Most orders issued by the Employment Standards Branch (“ESB”) can be appealed by one of the parties named in the order. If an appeal is properly filed, the ESB will send the appeal to the Board, which is called “referring” the appeal. The Board will hear the appeal anew or “de novo”, as if no prior decision had been made. This allows for a fresh examination of the facts and evidence.

Once an appeal is referred to the Board, a hearing will be scheduled, and all parties will have an opportunity to present evidence and make arguments. It is not a continuation of the investigation conducted by the ESB. The Board's decisions are final and binding, subject only to limited appeals to the Court of Appeal on questions of law or jurisdiction.

Appeal of an Order

A party to an employment standards order has the right to appeal within 14 days of receiving the order. The appeal must be filed with the ESB. If it is properly filed, it will then be referred to the Board.

The Board's responsibility is to review these matters independently, conduct hearings, and issue decisions that may confirm, change, or overturn the original orders.

Appeal of a Request to Reduce a Deposit

A person who appeals a payment of wages order must normally deposit the total amount ordered with the Director of Employment Standards. The deposit is held in trust pending the outcome of the appeal.

The party appealing the order may make an application to the Board to reduce the amount of the required deposit. For more information, please review Information Bulletin #11.

Following a hearing on the reduction issue, the Board's chairperson will consider whether the current amount ordered by the ESB should be reduced. They will either confirm the original amount or determine the amount of the deposit required, which may not be any less than $5000.

Appeal of an Administrative Penalty

An administrative penalty may be appealed by a person named in a notice of an administrative penalty. The appeal must be filed with the ESB. If it is properly filed, it will then be referred to the Board.

In considering an appeal of an administrative penalty, the Board will:

• Review the facts and circumstances of the alleged non-compliance.
• Determine whether the administrative penalty was properly imposed.
• Confirm or revoke the penalty. The Board cannot vary the amount.
• If the penalty is confirmed, consider whether to award costs against the appellant.

Appeal of an Order by a Receiver

If an employer goes into receivership after an employment standards officer makes an order against them, the appointed receiver can appeal the order to the Board or request an extension of time from the Board.

Appeals under other Acts

Orders under The Construction Industry Wages Act, The Remembrance Day Act, and The Worker Recruitment and Protection Act are considered to be issued under The Employment Standards Code, and these orders can be appealed to the Board.

When a party to the ESB proceedings appeals an order, the Board will:

1. give written notice to the parties
2. schedule a Case Management Conference
3. appoint a board representative to try a mediated resolution if appropriate
4. conduct a hearing
5. confirm, vary (change), revoke the order, or set it aside and make a new order

All parties are encouraged to speak with a board officer prior to the hearing date to discuss the matter being appealed, review the documents provided as evidence and discuss a potential solution that doesn't involve going to hearing.

ESC appeals to the Board are a new hearing where all parties are expected to present their cases fully.

• The Board will consider anew, as if no prior decision had been made. The Board will have reviewed the referral package prepared by the ESB, but it will re-evaluate the facts and evidence. They will not simply review the original order.
• All evidence and arguments must be presented.
• New evidence may be introduced that was not previously available or presented.
• All interested persons will have an opportunity to be heard, present evidence, and make presentations at the hearing.
• The Board may ask questions of witnesses and parties.
• The burden of proof is generally on the party bringing the appeal.

Please refer to the Preparing for your Hearing section of the MLB website for further information.

After hearing an appeal, the Board issues a written decision to the parties.

Confidentiality notice

Parties who file documents with the Board are participating in a public hearing. This means that all information included in an application:

• will be provided to the respondents and interested parties
• may be referenced in the Board's order or reasons
• may appear on the Board's website
• may be published in print and or an online reporting service

Appeals of board decisions

Board decisions are subject to limited rights of appeal. A party to a final order of the Board may appeal to The Court of Appeal, but only on a question of law or jurisdiction and only with permission of a judge

Orders under The Construction Industry Wages Act, The Remembrance Day Act, and The Worker Recruitment and Protection Act are considered to be issued under The Employment Standards Code, and these orders can be appealed to the Board.

The Construction Industry Wages Act – the Board determines appeals of payment of wages orders and administrative penalties issued by the Employment Standards Branch. The Board also determines applications related to the applicability of The Construction Industry Wages Act in certain circumstances.

The Remembrance Day Act – the Board determines appeals of orders issued by the Employment Standards Branch relating to holiday pay for work performed on Remembrance Day.

The Worker Recruitment and Protection Act – the Board determines appeals of orders issued by the Employment Standards Branch relating to:

i. prohibited fees charged by temporary help agencies and employment agencies
ii. prohibited fees charged by any person engaged in foreign worker or child performer recruitment
iii. improper costs or other amounts recovered by an employer from a foreign worker