B.C. eliminates self-help kit for employment standards complaints

Law360 Canada (September 6, 2019, 9:03 AM EDT) -- The B.C. government has eliminated the “self-help kit” for making employment standards complaints it says has hampered workers’ abilities to voice their concerns, a step observers are viewing as a positive one.

The kit was formally eliminated at the end of August, after legislation abolishing it passed in May. Previously, workers were required to use the kit — where they had to deal directly with their employer — before filing a complaint with the B.C. Labour Ministry’s Employment Standards Branch. The new complaints process will involve a direct application to the branch.

“I couldn’t be happier to officially say goodbye to the self-help kit,” said provincial Labour Minister Harry Bains. “For too long, the process has created a barrier for workers who have concerns about whether they are being paid or treated appropriately. Eliminating this as a required first step to filing a complaint with Employment Standards Branch will help ensure that workers can easily access help when they feel their rights have been violated.”

B.C. Employment Standards Coalition co-chair David Fairey said “we‘ve heard story after story of people who attempted to use the self-help kit to solve a dispute with an employer, only to have their employment terminated.”

“We are pleased that government has acted to eliminate this barrier for workers’ access to justice as a start to making the branch more worker-friendly,” he said. “We look forward to government making other significant changes to operations, so the branch can effectively and proactively carry out its enforcement mandate.”

Robert Russo, who teaches labour and employment law at the University of British Columbia, said figures released a year or two after the self-help kit was brought in by former Premier Gordon Campbell in 2002 there showed a sharp drop in the number of complaints filed with the branch.

“The government said it was because the self-help kit was working as designed, but there is a fear of reprisal by your employer, and there was research done in Ontario after they introduced similar self-help kits in 2010 that over half of the complainants didn’t file formal complaints,” he said. “It wasn’t definitively conclusive, but there was some evidence workers [in B.C.] didn’t want to confront their employers.”

Russo noted, when the British Columbia Law Institute (BCLI) issued its recommendations on employment standards which recommended ending the self-help kits, business owners really did not speak up in favour of keeping them.

“Most of the business organizations either didn’t oppose it, supported its removal or expressed no opinion on it,” he said. “There were very few who actually wanted to keep it, so it wasn’t seen as something that wasn’t a particularly effective mechanism by and large.”

Fred Wynne of Vancouver’s HHBG Lawyers noted dispute resolution processes like the self-help kit are common in administrative tribunals.

“Overall I don’t think the kit was a terrible idea, but I think the problem was you could not file a complaint without doing it, and the Employment Standards Act’s anti-retaliation component actually required a complaint, not just an issue to be raised,” he said. “I think in many circumstances [eliminating the self-help kit] is not that big a deal, but I think in a few exceptions it will be a positive step, such as in retaliation situations.”

Russo said the “lesson learned” from the self-help kit process and eventual elimination was there is nothing wrong with the principle of trying to resolve disputes amicably outside of court, “but you do have to take the context into consideration.”

“The reason you have these formal procedures in place is for situations where you have a vulnerable party, especially when there is a power imbalance,” he said. “It is fine to have this type of procedure if you are dealing with parties that are relatively equal, but those are pretty rare, so you need to have protections in place for that worker where there is an imbalance. I think in most situations where you are dealing with that type of employee-employer relationship, offloading of responsibility isn’t appropriate.”